\n| \n Exhibit D<\/p>\n<\/td>\n | <\/td>\n | \n Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n -iv-<\/p>\n
\nINDENTURE, dated as of July 29, 2010, among Igloo Merger Corporation, a
\nDelaware corporation (“Igloo<\/u>“), Interactive Data Corporation, a Delaware
\ncorporation (“Interactive Data<\/u>“), the Guarantors (as defined herein)
\nlisted on the signature pages hereto and The Bank of New York Mellon Trust
\nCompany, N.A., a New York banking corporation, as Trustee.<\/p>\n W<\/u> I<\/u> T<\/u> N<\/u> E<\/u> S<\/u> S<\/u>
\nE<\/u> T<\/u> H<\/u><\/p>\n WHEREAS, Igloo has duly authorized the creation of an issue of $700,000,000
\naggregate principal amount of 10.25% Senior Notes due 2018 (the “Initial
\nNotes<\/u>“);<\/p>\n WHEREAS, in connection with the Transaction (as defined herein), Igloo will
\nmerge with and into Interactive Data, after which the obligations of Igloo with
\nrespect to the due and punctual payment of the principal of, premium, if any,
\nand interest on all the Notes and the performance and observation of each
\ncovenant and agreement under this Indenture on the part of Igloo to be performed
\nor observed will become obligations of Interactive Data and unconditionally and
\nirrevocably guaranteed by the Guarantors; and<\/p>\n WHEREAS, each of Igloo, Interactive Data and each of the Guarantors has duly
\nauthorized the execution and delivery of this Indenture.<\/p>\n NOW, THEREFORE, Igloo, Interactive Data, the Guarantors and the Trustee agree
\nas follows for the benefit of each other and for the equal and ratable benefit
\nof the Holders of the Notes.<\/p>\n ARTICLE 1<\/p>\n DEFINITIONS AND INCORPORATION BY REFERENCE<\/p>\n Section 1.01 Definitions<\/u><\/p>\n “144A Global Note<\/u>” means a Global Note substantially in the form of
\nExhibit A<\/u> hereto bearing the Global Note Legend and the Private Placement
\nLegend and deposited with or on behalf of, and registered in the name of, the
\nDepositary or its nominee that will be issued in a denomination equal to the
\noutstanding principal amount of the Notes sold in reliance on Rule 144A.<\/p>\n “Acquired Indebtedness<\/u>” means, with respect to any specified Person,\n<\/p>\n (1) Indebtedness of any other Person existing at the time such other Person
\nis merged with or into or became a Restricted Subsidiary of such specified
\nPerson, including Indebtedness incurred in connection with, or in contemplation
\nof, such other Person merging with or into or becoming a Restricted Subsidiary
\nof such specified Person, and<\/p>\n (2) Indebtedness secured by a Lien encumbering any asset acquired by such
\nspecified Person.<\/p>\n “Acquisition<\/u>” means the transactions contemplated by the Transaction
\nAgreement.<\/p>\n “Additional Interest<\/u>” means all additional interest then owing
\npursuant to the Registration Rights Agreement.<\/p>\n “Additional Notes<\/u>” means additional Notes (other than the Initial
\nNotes) issued under this Indenture in accordance with Sections 2.01 and 4.09
\nhereof, as part of the same series as the Initial Notes.<\/p>\n
\n “Affiliate<\/u>” of any specified Person means any other Person directly or
\nindirectly controlling or controlled by or under direct or indirect common
\ncontrol with such specified Person. For purposes of this definition, “control”
\n(including, with correlative meanings, the terms “controlling,” “controlled by”
\nand “under common control with”), as used with respect to any Person, shall mean
\nthe possession, directly or indirectly, of the power to direct or cause the
\ndirection of the management or policies of such Person, whether through the
\nownership of voting securities, by agreement or otherwise.<\/p>\n “Agent<\/u>” means any Registrar or Paying Agent.<\/p>\n “Applicable Premium<\/u>” means, with respect to any Note on any Redemption
\nDate, the greater of:<\/p>\n (1) 1.0% of the principal amount of such Note; and<\/p>\n (2) the excess, if any, of (a) the present value at such Redemption Date of
\n(i) the redemption price of such Note at August 1, 2014 (such redemption price
\nbeing set forth in Section 3.07 hereof), plus (ii) all required interest
\npayments due on such Note through August 1, 2014 (excluding accrued but unpaid
\ninterest to the Redemption Date), computed using a discount rate equal to the
\nTreasury Rate as of such Redemption Date plus 50 basis points; over (b) the
\nprincipal amount of such Note.<\/p>\n “Applicable Procedures<\/u>” means, with respect to any transfer or
\nexchange of or for beneficial interests in any Global Note, the rules and
\nprocedures of the Depositary, Euroclear and\/or Clearstream that apply to such
\ntransfer or exchange.<\/p>\n “Asset Sale<\/u>” means:<\/p>\n (1) the sale, conveyance, transfer or other disposition, whether in a single
\ntransaction or a series of related transactions, of property or assets
\n(including by way of a Sale and Lease-Back Transaction) of the Issuer or any of
\nits Restricted Subsidiaries (each referred to in this definition as a
\n“disposition<\/u>“); or<\/p>\n (2) the issuance or sale of Equity Interests of any Restricted Subsidiary
\n(other than Preferred Stock of Restricted Subsidiaries issued in compliance with
\nSection 4.09 hereof), whether in a single transaction or a series of related
\ntransactions;<\/p>\n in each case, other than:<\/p>\n (a) any disposition of Cash Equivalents or Investment Grade Securities or
\nobsolete or worn out equipment in the ordinary course of business or any
\ndisposition of inventory or goods (or other assets) held for sale or no longer
\nused in the ordinary course of business;<\/p>\n (b) the disposition of all or substantially all of the assets of the Issuer
\nin a manner permitted pursuant to the provisions described under Section 5.01
\nhereof or any disposition that constitutes a Change of Control pursuant to this
\nIndenture;<\/p>\n (c) the making of any Restricted Payment or Permitted Investment that is
\npermitted to be made, and is made, under Section 4.07 hereof;<\/p>\n -2-<\/p>\n
\n(d) any disposition of assets or issuance or sale of Equity Interests of any
\nRestricted Subsidiary in any transaction or series of transactions with an
\naggregate fair market value of less than $20.0 million;<\/p>\n (e) any disposition of property or assets or issuance of securities by a
\nRestricted Subsidiary of the Issuer to the Issuer or by the Issuer or a
\nRestricted Subsidiary of the Issuer to another Restricted Subsidiary of the
\nIssuer;<\/p>\n (f) to the extent allowable under Section 1031 of the Internal Revenue Code
\nof 1986, any exchange of like property (excluding any boot thereon) for use in a
\nSimilar Business;<\/p>\n (g) the lease, assignment or sublease of any real or personal property in the
\nordinary course of business;<\/p>\n (h) any issuance or sale of Equity Interests in, or Indebtedness or other
\nsecurities of, an Unrestricted Subsidiary;<\/p>\n (i) foreclosures, condemnation or any similar action on assets;<\/p>\n (j) sales of accounts receivable, or participations therein, in connection
\nwith any Receivables Facility;<\/p>\n (k) any financing transaction with respect to property built or acquired by
\nthe Issuer or any Restricted Subsidiary after the Issue Date, including Sale and
\nLease-Back Transactions and asset securitizations permitted by this Indenture;
\nand<\/p>\n (l) any surrender or waiver of contractual rights or the settlement, release
\nor surrender of contractual rights or other litigation claims in the ordinary
\ncourse of business.<\/p>\n “Bankruptcy Code<\/u>” means Title 11 of the United States Code, as
\namended.<\/p>\n “Bankruptcy Law<\/u>” means the Bankruptcy Code and any similar federal,
\nstate or foreign law for the relief of debtors.<\/p>\n “Broker-Dealer<\/u>” has the meaning set forth in the Registration Rights
\nAgreement.<\/p>\n “Business Day<\/u>” means each day which is not a Legal Holiday.<\/p>\n “Capital Stock<\/u>” means:<\/p>\n (1) in the case of a corporation, corporate stock;<\/p>\n (2) in the case of an association or business entity, any and all shares,
\ninterests, participations, rights or other equivalents (however designated) of
\ncorporate stock;<\/p>\n (3) in the case of a partnership or limited liability company, partnership or
\nmembership interests (whether general or limited); and<\/p>\n (4) any other interest or participation that confers on a Person the right to
\nreceive a share of the profits and losses of, or distributions of assets of, the
\nissuing Person.<\/p>\n -3-<\/p>\n
\n“Capitalized Lease Obligation<\/u>” means, at the time any determination
\nthereof is to be made, the amount of the liability in respect of a capital lease
\nthat would at such time be required to be capitalized and reflected as a
\nliability on a balance sheet (excluding the footnotes thereto) in accordance
\nwith GAAP.<\/p>\n “Capitalized Software Expenditures<\/u>” means, for any period, the
\naggregate of all expenditures (whether paid in cash or accrued as liabilities)
\nby a Person and its Restricted Subsidiaries during such period in respect of
\npurchased software or internally developed software and software enhancements
\nthat, in conformity with GAAP, are or are required to be reflected as
\ncapitalized costs on the consolidated balance sheet of a Person and its
\nRestricted Subsidiaries.<\/p>\n “Cash Equivalents<\/u>” means:<\/p>\n (1) United States dollars;<\/p>\n (2)(a) euro, or any national currency of any participating member state of
\nthe EMU; or<\/p>\n (b) in the case of any Foreign Subsidiary that is a Restricted Subsidiary,
\nsuch local currencies held by them from time to time in the ordinary course of
\nbusiness;<\/p>\n (3) securities issued or directly and fully and unconditionally guaranteed or
\ninsured by the U.S. government or any agency or instrumentality thereof the
\nsecurities of which are unconditionally guaranteed as a full faith and credit
\nobligation of such government with maturities of 12 months or less from the date
\nof acquisition;<\/p>\n (4) certificates of deposit, time deposits and eurodollar time deposits with
\nmaturities of one year or less from the date of acquisition, bankers153
\nacceptances with maturities not exceeding one year and overnight bank deposits,
\nin each case with any commercial bank having capital and surplus of not less
\nthan $500.0 million in the case of U.S. banks and $100.0 million (or the U.S.
\ndollar equivalent as of the date of determination) in the case of non-U.S.
\nbanks;<\/p>\n (5) repurchase obligations for underlying securities of the types described
\nin clauses (3) and (4) entered into with any financial institution meeting the
\nqualifications specified in clause (4) above;<\/p>\n (6) commercial paper rated at least P-1 by Moody153s or at least A-1 by S&P
\nand in each case maturing within 12 months after the date of creation thereof;\n<\/p>\n (7) marketable short-term money market and similar securities having a rating
\nof at least P-2 or A-2 from either Moody153s or S&P, respectively (or, if at
\nany time neither Moody153s nor S&P shall be rating such obligations, an
\nequivalent rating from another Rating Agency) and in each case maturing within
\n24 months after the date of creation thereof;<\/p>\n (8) investment funds investing 95% of their assets in securities of the types
\ndescribed in clauses (1) through (7) above;<\/p>\n (9) readily marketable direct obligations issued by any state, commonwealth
\nor territory of the United States or any political subdivision or taxing
\nauthority thereof having an Investment Grade Rating from either Moody153s or
\nS&P with maturities of 24 months or less from the date of acquisition;<\/p>\n -4-<\/p>\n
\n(10) Indebtedness or Preferred Stock issued by Persons with a rating of “A”
\nor higher from S&P or “A2” or higher from Moody153s with maturities of 12
\nmonths or less from the date of acquisition; and<\/p>\n (11) Investments with average maturities of 12 months or less from the date
\nof acquisition in money market funds rated AAA- (or the equivalent thereof) or
\nbetter by S&P or Aaa3 (or the equivalent thereof) or better by Moody153s.<\/p>\n Notwithstanding the foregoing, Cash Equivalents shall include amounts
\ndenominated in currencies other than those set forth in clauses (1) and (2)
\nabove, provided<\/u> that such amounts are converted into any currency listed
\nin clauses (1) and (2) as promptly as practicable and in any event within ten
\nBusiness Days following the receipt of such amounts.<\/p>\n “Change of Control<\/u>” means the occurrence of any of the following:<\/p>\n (1) the sale, lease or transfer, in one or a series of related transactions,
\nof all or substantially all of the assets of the Issuer and its Subsidiaries,
\ntaken as a whole, to any Person other than a Permitted Holder; or<\/p>\n (2) the Issuer becomes aware of (by way of a report or any other filing
\npursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or
\notherwise) the acquisition by any Person or group (within the meaning of Section
\n13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision),
\nincluding any group acting for the purpose of acquiring, holding or disposing of
\nsecurities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
\nother than the Permitted Holders, in a single transaction or in a related series
\nof transactions, by way of merger, consolidation or other business combination
\nor purchase of beneficial ownership (within the meaning of Rule 13d-3 under the
\nExchange Act, or any successor provision) of 50% or more of the total voting
\npower of the Voting Stock of the Issuer or any of its direct or indirect parent
\ncompanies holding directly or indirectly 100% of the total voting power of the
\nVoting Stock of the Issuer.<\/p>\n “Clearstream<\/u>” means Clearstream Banking, Soci t Anonyme.<\/p>\n “Consolidated Depreciation and Amortization Expense<\/u>” means with
\nrespect to any Person for any period, the total amount of depreciation and
\namortization expense, including the amortization of deferred financing fees and
\nCapitalized Software Expenditures of such Person and its Restricted Subsidiaries
\nfor such period on a consolidated basis and otherwise determined in accordance
\nwith GAAP.<\/p>\n “Consolidated Interest Expense<\/u>” means, with respect to any Person for
\nany period, without duplication, the sum of:<\/p>\n (1) consolidated interest expense of such Person and its Restricted
\nSubsidiaries for such period, to the extent such expense was deducted (and not
\nadded back) in computing Consolidated Net Income (including (a) amortization of
\noriginal issue discount resulting from the issuance of Indebtedness at less than
\npar, other than with respect to Indebtedness borrowed under the Senior Credit
\nFacilities in connection with the Transaction, (b) all commissions, discounts
\nand other fees and charges owed with respect to letters of credit or bankers
\nacceptances, (c) non-cash interest payments (but excluding any non-cash interest
\nexpense attributable to the movement in the mark to market valuation of Hedging
\nObligations or other derivative instruments pursuant to GAAP), (d) the interest
\ncomponent of Capitalized Lease Obligations, and (e) net payments, if any,
\npursuant to interest rate Hedging Obligations with respect to Indebtedness, and
\nexcluding (u) accretion or accrual of discounted liabilities not constituting
\nIndebtedness, (v) any expense resulting from the discounting of Indebtedness in
\nconnection with the application of recapitalization or purchase accounting, (w)
\nany Additional Interest and any comparable “additional interest” with respect to
\nother securities, (x) amortization of deferred financing fees, debt issuance
\ncosts, commissions, fees and expenses, and original issue discount with respect
\nto Indebtedness borrowed under the Senior Credit Facilities in connection with
\nthe Transaction, (y) any expensing of bridge, commitment and other financing
\nfees and (z) commissions, discounts, yield and other fees and charges (including
\nany interest expense) related to any Receivables Facility); plus<\/p>\n -5-<\/p>\n
\n(2) consolidated capitalized interest of such Person and its Restricted
\nSubsidiaries for such period, whether paid or accrued; less<\/p>\n (3) interest income for such period.<\/p>\n For purposes of this definition, interest on a Capitalized Lease Obligation
\nshall be deemed to accrue at an interest rate reasonably determined by such
\nPerson to be the rate of interest implicit in such Capitalized Lease Obligation
\nin accordance with GAAP.<\/p>\n “Consolidated Net Income<\/u>” means, with respect to any Person for any
\nperiod, the aggregate of the Net Income, of such Person and its Restricted
\nSubsidiaries for such period, on a consolidated basis, and otherwise determined
\nin accordance with GAAP; provided<\/u>, however<\/u>, that, without
\nduplication,<\/p>\n (1) any after-tax effect of extraordinary, non-recurring or unusual gains or
\nlosses (less all fees and expenses relating thereto) or expenses (including
\nrelating to the Transaction to the extent incurred on or prior to the date that
\nis the one year anniversary of the Issue Date), severance, relocation costs and
\ncurtailments or modifications to pension and post-retirement employee benefit
\nplans shall be excluded,<\/p>\n (2) the Net Income for such period shall not include the cumulative effect of
\na change in accounting principles during such period,<\/p>\n (3) any after-tax effect of income (loss) from disposed or discontinued
\noperations and any net after-tax gains or losses on disposal of disposed,
\nabandoned or discontinued operations shall be excluded,<\/p>\n (4) any after-tax effect of gains or losses (less all fees and expenses
\nrelating thereto) attributable to asset dispositions other than in the ordinary
\ncourse of business, as determined in good faith by the Issuer, shall be
\nexcluded,<\/p>\n (5) the Net Income for such period of any Person that is not a Subsidiary, or
\nis an Unrestricted Subsidiary, or that is accounted for by the equity method of
\naccounting, shall be excluded; provided<\/u> that Consolidated Net Income of
\nthe Issuer shall be increased by the amount of dividends or distributions or
\nother payments that are actually paid in cash (or to the extent converted into
\ncash) to the referent Person or a Restricted Subsidiary thereof in respect of
\nsuch period,<\/p>\n (6) solely for the purpose of determining the amount available for Restricted
\nPayments under clause (3)(a) of Section 4.07(a) hereof, the Net Income for such
\nperiod of any Restricted Subsidiary (other than any Guarantor) shall be excluded
\nto the extent the declaration or payment of dividends or similar distributions
\nby that Restricted Subsidiary of its Net Income is not at the date of
\ndetermination wholly permitted without any prior governmental approval (which
\nhas not been obtained) or, directly or indirectly, is otherwise restricted by
\nthe operation of the terms of its charter or any agreement, instrument,
\njudgment, decree, order, statute, rule or governmental regulation applicable to
\nthat Restricted Subsidiary or its stockholders, unless such restriction with
\nrespect to the payment of dividends or similar distributions has been legally
\nwaived, provided<\/u> that Consolidated Net Income of the Issuer will be
\nincreased by the amount of dividends or other distributions or other payments
\nactually paid in cash (or to the extent converted into cash) or Cash Equivalents
\nto the Issuer or a Restricted Subsidiary thereof in respect of such period, to
\nthe extent not already included therein,<\/p>\n -6-<\/p>\n
\n(7) effects of adjustments (including the effects of such adjustments pushed
\ndown to the Issuer and its Restricted Subsidiaries) in the property and
\nequipment, software and other intangible assets, deferred revenue and debt line
\nitems in such Person153s consolidated financial statements pursuant to GAAP
\nresulting from the application of purchase accounting in relation to the
\nTransaction or any consummated acquisition or the amortization or write-off of
\nany amounts thereof, net of taxes, shall be excluded,<\/p>\n (8) any after-tax effect of income (loss) from the early extinguishment of
\nIndebtedness or Hedging Obligations or other derivative instruments shall be
\nexcluded,<\/p>\n (9) any impairment charge, asset write-off or write-down, in each case,
\npursuant to GAAP and the amortization of intangibles arising pursuant to GAAP
\nshall be excluded,<\/p>\n (10) any (i) non-cash compensation expense recorded from grants of stock
\nappreciation or similar rights, stock options, restricted stock or other rights
\nand (ii) income (loss) attributable to deferred compensation plans or trusts
\nshall be excluded,<\/p>\n (11) any fees and expenses incurred during such period, or any amortization
\nthereof for such period, in connection with any acquisition, Investment, Asset
\nSale, issuance or repayment of Indebtedness, issuance of Equity Interests,
\nrefinancing transaction or amendment or modification of any debt instrument (in
\neach case, including any such transaction consummated prior to the Issue Date
\nand any such transaction undertaken but not completed) and any charges or
\nnon-recurring merger costs incurred during such period as a result of any such
\ntransaction shall be excluded,<\/p>\n (12) accruals and reserves that are established or adjusted within twelve
\nmonths after the Issue Date that are so required to be established as a result
\nof the Transaction in accordance with GAAP, or changes as a result of adoption
\nor modification of accounting policies, shall be excluded, and<\/p>\n (13) to the extent covered by insurance and actually reimbursed, or, so long
\nas the Issuer has made a determination that there exists reasonable evidence
\nthat such amount will in fact be reimbursed by the insurer and only to the
\nextent that such amount is (a) not denied by the applicable carrier in writing
\nwithin 180 days and (b) in fact reimbursed within 365 days of the date of such
\nevidence (with a deduction for any amount so added back to the extent not so
\nreimbursed within 365 days), expenses with respect to liability or casualty
\nevents or business interruption shall be excluded.<\/p>\n Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only
\n(other than clause (3)(d) of Section 4.07(a) hereof), there shall be excluded
\nfrom Consolidated Net Income any income arising from any sale or other
\ndisposition of Restricted Investments made by the Issuer and its Restricted
\nSubsidiaries, any repurchases and redemptions of Restricted Investments from the
\nIssuer and its Restricted Subsidiaries, any repayments of loans and advances
\nwhich constitute Restricted Investments by the Issuer or any of its Restricted
\nSubsidiaries, any sale of the stock of an Unrestricted Subsidiary or any
\ndistribution or dividend from an Unrestricted Subsidiary, in each case only to
\nthe extent such amounts increase the amount of Restricted Payments permitted
\nunder clause (3)(d) of Section 4.07(a) hereof.<\/p>\n -7-<\/p>\n
\n“Consolidated Secured Debt Ratio<\/u>” as of any date of determination
\nmeans, the ratio of (1) Consolidated Total Indebtedness of the Issuer and its
\nRestricted Subsidiaries (other than Hedging Obligations) that is secured by
\nLiens as of the end of the most recent fiscal period for which internal
\nfinancial statements are available immediately preceding the date on which such
\nevent for which such calculation is being made shall occur to (2) the Issuer153s
\nEBITDA for the most recently ended four full fiscal quarters for which internal
\nfinancial statements are available immediately preceding the date on which such
\nevent for which such calculation is being made shall occur, in each case with
\nsuch pro<\/u> forma<\/u> adjustments to Consolidated Total Indebtedness and
\nEBITDA as are appropriate and consistent with the pro<\/u> forma<\/u>
\nadjustment provisions set forth in the definition of Fixed Charge Coverage
\nRatio.<\/p>\n “Consolidated Total Indebtedness<\/u>” means, as at any date of
\ndetermination, an amount equal to the sum of (1) the aggregate amount of all
\noutstanding Indebtedness of the Issuer and its Restricted Subsidiaries on a
\nconsolidated basis consisting of Indebtedness for borrowed money, Obligations in
\nrespect of Capitalized Lease Obligations and debt obligations evidenced by
\npromissory notes and similar instruments (and excluding, for the avoidance of
\ndoubt, all obligations relating to Receivables Facilities) and (2) the aggregate
\namount of all outstanding Disqualified Stock of the Issuer and all Preferred
\nStock of its Restricted Subsidiaries on a consolidated basis, with the amount of
\nsuch Disqualified Stock and Preferred Stock equal to the greater of their
\nrespective voluntary or involuntary liquidation preferences and maximum fixed
\nrepurchase prices, in each case determined on a consolidated basis in accordance
\nwith GAAP. For purposes hereof, the “maximum fixed repurchase price” of any
\nDisqualified Stock or Preferred Stock that does not have a fixed repurchase
\nprice shall be calculated in accordance with the terms of such Disqualified
\nStock or Preferred Stock as if such Disqualified Stock or Preferred Stock were
\npurchased on any date on which Consolidated Total Indebtedness shall be required
\nto be determined pursuant to this Indenture, and if such price is based upon, or
\nmeasured by, the fair market value of such Disqualified Stock or Preferred
\nStock, such fair market value shall be determined reasonably and in good faith
\nby the board of directors of the Issuer.<\/p>\n “Contingent Obligations<\/u>” means, with respect to any Person, any
\nobligation of such Person guaranteeing any leases, dividends or other
\nobligations that do not constitute Indebtedness (“primary obligations<\/u>“)
\nof any other Person (the “primary obligor<\/u>“) in any manner, whether
\ndirectly or indirectly, including, without limitation, any obligation of such
\nPerson, whether or not contingent,<\/p>\n (1) to purchase any such primary obligation or any property constituting
\ndirect or indirect security therefor,<\/p>\n (2) to advance or supply funds<\/p>\n (a) for the purchase or payment of any such primary obligation, or<\/p>\n (b) to maintain working capital or equity capital of the primary obligor or
\notherwise to maintain the net worth or solvency of the primary obligor, or<\/p>\n (3) to purchase property, securities or services primarily for the purpose of
\nassuring the owner of any such primary obligation of the ability of the primary
\nobligor to make payment of such primary obligation against loss in respect
\nthereof.<\/p>\n -8-<\/p>\n
\n“Corporate Trust Office of the Trustee<\/u>” shall be at the address of the
\nTrustee specified in Section 12.02 hereof or such other address as to which the
\nTrustee may give notice to the Holders and the Issuer.<\/p>\n “Credit Facilities<\/u>” means, with respect to the Issuer or any of its
\nRestricted Subsidiaries, one or more debt facilities, including the Senior
\nCredit Facilities, or other financing arrangements (including, without
\nlimitation, commercial paper facilities or indentures) providing for revolving
\ncredit loans, term loans, letters of credit or other long-term indebtedness,
\nincluding any notes, mortgages, guarantees, collateral documents, instruments
\nand agreements executed in connection therewith, and any amendments,
\nsupplements, modifications, extensions, renewals, restatements or refundings
\nthereof and any indentures or credit facilities or commercial paper facilities
\nthat replace, refund or refinance any part of the loans, notes, other credit
\nfacilities or commitments thereunder, including any such replacement, refunding
\nor refinancing facility or indenture that increases the amount permitted to be
\nborrowed thereunder or alters the maturity thereof (provided<\/u> that such
\nincrease in borrowings is permitted under Section 4.09 hereof) or adds
\nRestricted Subsidiaries as additional borrowers or guarantors thereunder and
\nwhether by the same or any other agent, lender or group of lenders.<\/p>\n “Custodian<\/u>” means the Trustee, as custodian with respect to the Notes
\nin global form, or any successor entity thereto.<\/p>\n “Default<\/u>” means any event that is, or with the passage of time or the
\ngiving of notice or both would be, an Event of Default.<\/p>\n “Definitive Note<\/u>” means a certificated Note registered in the name of
\nthe Holder thereof and issued in accordance with Section 2.06(c) hereof,
\nsubstantially in the form of Exhibit A<\/u> hereto except that such Note shall
\nnot bear the Global Note Legend and shall not have the “Schedule of Exchanges of
\nInterests in the Global Note” attached thereto.<\/p>\n “Depositary<\/u>” means, with respect to the Notes issuable or issued in
\nwhole or in part in global form, the Person specified in Section 2.03 hereof as
\nthe Depositary with respect to the Notes, and any and all successors thereto
\nappointed as Depositary hereunder and having become such pursuant to the
\napplicable provision of this Indenture.<\/p>\n “Designated Non-cash Consideration<\/u>” means the fair market value of
\nnon-cash consideration received by the Issuer or a Restricted Subsidiary in
\nconnection with an Asset Sale that is so designated as Designated Non-cash
\nConsideration pursuant to an Officer153s Certificate, setting forth the basis of
\nsuch valuation, executed by the principal financial officer of the Issuer, less
\nthe amount of cash or Cash Equivalents received in connection with a subsequent
\nsale of or collection on such Designated Non-cash Consideration.<\/p>\n “Designated Preferred Stock<\/u>” means Preferred Stock of the Issuer or
\nany parent corporation thereof (in each case other than Disqualified Stock) that
\nis issued for cash (other than to a Restricted Subsidiary or an employee stock
\nownership plan or trust established by the Issuer or any of its Subsidiaries)
\nand is so designated as Designated Preferred Stock, pursuant to an Officer153s
\nCertificate executed by the principal financial officer of the Issuer or the
\napplicable parent corporation thereof, as the case may be, on the issuance date
\nthereof, the cash proceeds of which are excluded from the calculation set forth
\nin clause (3) of Section 4.07(a) hereof.<\/p>\n “Disqualified Stock<\/u>” means, with respect to any Person, any Capital
\nStock of such Person which, by its terms, or by the terms of any security into
\nwhich it is convertible or for which it is putable or exchangeable, or upon the
\nhappening of any event, matures or is mandatorily redeemable (other than solely
\nas a result of a change of control or asset sale) pursuant to a sinking fund
\nobligation or otherwise, or is redeemable at the option of the holder thereof
\n(other than solely as a result of a change of control or asset sale), in whole
\nor in part, in each case prior to the date 91 days after the earlier of the
\nmaturity date of the Notes or the date the Notes are no longer outstanding;
\nprovided<\/u>, however<\/u>, that if such Capital Stock is issued to any
\nplan for the benefit of employees of the Issuer or its Subsidiaries or by any
\nsuch plan to such employees, such Capital Stock shall not constitute
\nDisqualified Stock solely because it may be required to be repurchased by the
\nIssuer or its Subsidiaries in order to satisfy applicable statutory or
\nregulatory obligations.<\/p>\n -9-<\/p>\n
\n“EBITDA<\/u>” means, with respect to any Person for any period, the
\nConsolidated Net Income of such Person for such period,<\/p>\n (1) increased (without duplication) by:<\/p>\n (a) provision for taxes based on income or profits or capital, including,
\nwithout limitation, state, franchise and similar taxes and foreign withholding
\ntaxes of such Person paid or accrued during such period deducted (and not added
\nback) in computing Consolidated Net Income; plus<\/u><\/p>\n (b) Fixed Charges of such Person for such period (including (x) net losses or
\nHedging Obligations or other derivative instruments entered into for the purpose
\nof hedging interest rate risk and (y) costs of surety bonds in connection with
\nfinancing activities, in each case, to the extent included in Fixed Charges),
\ntogether with items excluded from the definition of “Consolidated Interest
\nExpense” pursuant to clauses 1(u) through 1(z) thereof, to the extent the same
\nwere deducted (and not added back) in calculating such Consolidated Net Income;
\nplus<\/u><\/p>\n (c) Consolidated Depreciation and Amortization Expense of such Person for
\nsuch period to the extent the same were deducted (and not added back) in
\ncomputing Consolidated Net Income; plus<\/u><\/p>\n (d) any expenses or charges (other than depreciation or amortization expense)
\nrelated to any Equity Offering, Permitted Investment, acquisition, disposition,
\nrecapitalization or the incurrence of Indebtedness permitted to be incurred by
\nthis Indenture (including a refinancing thereof) (whether or not successful),
\nincluding (i) such fees, expenses or charges related to the offering of the
\nNotes and the Credit Facilities and (ii) any amendment or other modification of
\nthe Notes, and, in each case, deducted (and not added back) in computing
\nConsolidated Net Income; plus<\/u><\/p>\n (e) the amount of any restructuring charge or reserve deducted (and not added
\nback) in such period in computing Consolidated Net Income, including any
\none-time costs incurred in connection with acquisitions after the Issue Date and
\ncosts related to the closure and\/or consolidation of facilities; plus<\/u>\n<\/p>\n (f) any other non-cash charges, including any write offs or write downs,
\nreducing Consolidated Net Income for such period (provided<\/u> that if any
\nsuch non-cash charges represent an accrual or reserve for potential cash items
\nin any future period, the cash payment in respect thereof in such future period
\nshall be subtracted from EBITDA to such extent, and excluding amortization of a
\nprepaid cash item that was paid in a prior period); plus<\/u><\/p>\n -10-<\/p>\n
\n(g) the amount of any minority interest expense consisting of Subsidiary
\nincome attributable to minority equity interests of third parties in any
\nnon-Wholly Owned Subsidiary deducted (and not added back) in such period in
\ncalculating Consolidated Net Income; plus<\/u><\/p>\n (h) the amount of management, monitoring, consulting and advisory fees and
\nrelated expenses paid in such period to the Investors to the extent otherwise
\npermitted under Section 4.11 hereof; plus<\/u><\/p>\n (i) the amount of net cost savings projected by the Issuer in good faith to
\nbe realized as a result of specified actions initiated or to be taken on or
\nprior to the date that is 18 months after the Issue Date (calculated on a
\npro<\/u> forma<\/u> basis as though such cost savings had been realized on
\nthe first day of such period), net of the amount of actual benefits realized
\nduring such period from such actions; provided<\/u> that (x) such cost savings
\nare reasonably identifiable and quantifiable, (y) no cost savings shall be added
\npursuant to this clause (i) to the extent duplicative of any expenses or charges
\nrelating to such cost savings that are included in clause (e) above, and (z) the
\naggregate amount of cost savings added pursuant to this clause (i) shall not
\nexceed $30.0 million for any four consecutive quarter period (which adjustments
\nmay be incremental to pro<\/u> forma<\/u> adjustments made pursuant to the
\nsecond paragraph of the definition of “Fixed Charge Coverage Ratio”);
\nplus<\/u><\/p>\n (j) the amount of loss or discount on sale of receivables and related assets
\nto the Receivables Subsidiary in connection with a Receivables Facility;
\nplus<\/u><\/p>\n (k) any costs or expense incurred by the Issuer or a Restricted Subsidiary
\npursuant to any management equity plan or stock option plan or any other
\nmanagement or employee benefit plan or agreement or any stock subscription or
\nshareholder agreement, to the extent that such cost or expenses are funded with
\ncash proceeds contributed to the capital of the Issuer or net cash proceeds of
\nan issuance of Equity Interest of the Issuer (other than Disqualified Stock)
\nsolely to the extent that such net cash proceeds are excluded from the
\ncalculation set forth in clause (3) of Section 4.07(a) hereof; plus<\/u><\/p>\n (l) the amount of expenses relating to payments made to option holders of any
\ndirect or indirect parent company of the Issuer or any of its direct or indirect
\nparent companies in connection with, or as a result of, any distribution being
\nmade to shareholders of such Person or its direct or indirect parent companies,
\nwhich payments are being made to compensate such option holders as though they
\nwere shareholders at the time of, and entitled to share in, such distribution,
\nin each case to the extent permitted under this Indenture; and<\/p>\n (2) decreased by (without duplication) non-cash gains increasing Consolidated
\nNet Income of such Person for such period, excluding any non-cash gains to the
\nextent they represent the reversal of an accrual or reserve for a potential cash
\nitem that reduced EBITDA in any prior period, and<\/p>\n (3) increased or decreased by (without duplication):<\/p>\n (a) any net gain or loss resulting in such period from Hedging Obligations
\nand the application of Financial Accounting Standards Codification No.
\n815:Derivatives and Hedging; plus<\/u> or minus<\/u>, as applicable,<\/p>\n -11-<\/p>\n
\n(b) any net gain or loss resulting in such period from currency translation
\ngains or losses related to currency remeasurements of Indebtedness (including
\nany net loss or gain resulting from hedge agreements for currency exchange risk
\nand revaluations of intercompany balances).<\/p>\n “EMU<\/u>” means economic and monetary union as contemplated in the Treaty
\non European Union.<\/p>\n “Equity Interests<\/u>” means Capital Stock and all warrants, options or
\nother rights to acquire Capital Stock, but excluding any debt security that is
\nconvertible into, or exchangeable for, Capital Stock.<\/p>\n “Equity Offering<\/u>” means any public or private sale of common stock or
\nPreferred Stock of the Issuer or any of its direct or indirect parent companies
\n(excluding Disqualified Stock), other than:<\/p>\n (1) public offerings with respect to the Issuer153s or any direct or indirect
\nparent company153s common stock registered on Form S-8;<\/p>\n (2) issuances to any Subsidiary of the Issuer; and<\/p>\n (3) any such public or private sale that constitutes an Excluded
\nContribution.<\/p>\n “euro<\/u>” means the single currency of participating member states of the
\nEMU.<\/p>\n “Euroclear<\/u>” means Euroclear S.A.\/N.V., as operator of the Euroclear
\nsystem.<\/p>\n “Exchange Act<\/u>” means the Securities Exchange Act of 1934, as amended,
\nand the rules and regulations of the SEC promulgated thereunder.<\/p>\n “Exchange Notes<\/u>” means the Notes issued in the Exchange Offer pursuant
\nto Section 2.06(f) hereto.<\/p>\n “Exchange Offer<\/u>” has the meaning set forth in the Registration Rights
\nAgreement.<\/p>\n “Exchange Offer Registration Statement<\/u>” has the meaning set forth in
\nthe Registration Rights Agreement.<\/p>\n “Excluded Contribution<\/u>” means net cash proceeds, marketable securities
\nor Qualified Proceeds received by the Issuer from:<\/p>\n (1) contributions to its common equity capital, and<\/p>\n (2) the sale (other than to a Subsidiary of the Issuer or to any management
\nequity plan or stock option plan or any other management or employee benefit
\nplan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock
\nand Designated Preferred Stock) of the Issuer,<\/p>\n in each case designated as Excluded Contributions pursuant to an officer153s
\ncertificate executed by the principal financial officer of the Issuer on the
\ndate such capital contributions are made or the date such Equity Interests are
\nsold, as the case may be, which are excluded from the calculation set forth in
\nclause (3) of Section 4.07(a) hereof.<\/p>\n -12-<\/p>\n
\n“Fixed Charge Coverage Ratio<\/u>” means, with respect to any Person for
\nany period, the ratio of EBITDA of such Person for such period to the Fixed
\nCharges of such Person for such period. In the event that the Issuer or any
\nRestricted Subsidiary incurs, assumes, guarantees, redeems, retires or
\nextinguishes any Indebtedness (other than Indebtedness incurred under any
\nrevolving credit facility unless such Indebtedness has been permanently repaid
\nand has not been replaced) or issues or redeems Disqualified Stock or Preferred
\nStock subsequent to the commencement of the period for which the Fixed Charge
\nCoverage Ratio is being calculated but prior to or simultaneously with the event
\nfor which the calculation of the Fixed Charge Coverage Ratio is made (the
\n“Fixed Charge Coverage Ratio Calculation Date<\/u>“), then the Fixed Charge
\nCoverage Ratio shall be calculated giving pro<\/u> forma<\/u> effect to such
\nincurrence, assumption, guarantee, redemption, retirement or extinguishment of
\nIndebtedness, or such issuance or redemption of Disqualified Stock or Preferred
\nStock, as if the same had occurred at the beginning of the applicable
\nfour-quarter period.<\/p>\n For purposes of making the computation referred to above, Investments,
\nacquisitions, dispositions, mergers, consolidations and disposed operations (as
\ndetermined in accordance with GAAP) that have been made by the Issuer or any of
\nits Restricted Subsidiaries during the four-quarter reference period or
\nsubsequent to such reference period and on or prior to or simultaneously with
\nthe Fixed Charge Coverage Ratio Calculation Date shall be calculated on a
\npro<\/u> forma<\/u> basis assuming that all such Investments, acquisitions,
\ndispositions, mergers, consolidations and disposed operations (and the change in
\nany associated fixed charge obligations and the change in EBITDA resulting
\ntherefrom) had occurred on the first day of the four-quarter reference period.
\nIf since the beginning of such period any Person that subsequently became a
\nRestricted Subsidiary or was merged with or into the Issuer or any of its
\nRestricted Subsidiaries since the beginning of such period shall have made any
\nInvestment, acquisition, disposition, merger, consolidation or disposed
\noperation that would have required adjustment pursuant to this definition, then
\nthe Fixed Charge Coverage Ratio shall be calculated giving pro<\/u>
\nforma<\/u> effect thereto for such period as if such Investment, acquisition,
\ndisposition, merger, consolidation or disposed operation had occurred at the
\nbeginning of the applicable four-quarter period.<\/p>\n For purposes of this definition, whenever pro<\/u> forma<\/u> effect is
\nto be given to a transaction, the pro<\/u> forma<\/u> calculations shall be
\nmade in good faith by a responsible financial or accounting officer of the
\nIssuer. If any Indebtedness bears a floating rate of interest and is being given
\npro<\/u> forma<\/u> effect, the interest on such Indebtedness shall be
\ncalculated as if the rate in effect on the Fixed Charge Coverage Ratio
\nCalculation Date had been the applicable rate for the entire period (taking into
\naccount any Hedging Obligations applicable to such Indebtedness). Interest on a
\nCapitalized Lease Obligation shall be deemed to accrue at an interest rate
\nreasonably determined by a responsible financial or accounting officer of the
\nIssuer to be the rate of interest implicit in such Capitalized Lease Obligation
\nin accordance with GAAP. For purposes of making the computation referred to
\nabove, interest on any Indebtedness under a revolving credit facility computed
\non a pro<\/u> forma<\/u> basis shall be computed based upon the average
\ndaily balance of such Indebtedness during the applicable period except as set
\nforth in the first paragraph of this definition. Interest on Indebtedness that
\nmay optionally be determined at an interest rate based upon a factor of a prime
\nor similar rate, a eurocurrency interbank offered rate, or other rate, shall be
\ndeemed to have been based upon the rate actually chosen, or, if none, then based
\nupon such optional rate chosen as the Issuer may designate.<\/p>\n “Fixed Charges<\/u>” means, with respect to any Person for any period, the
\nsum of:<\/p>\n (1) Consolidated Interest Expense of such Person for such period;<\/p>\n (2) all cash dividends or other distributions paid (excluding items
\neliminated in consolidation) on any series of Preferred Stock during such
\nperiod; and<\/p>\n -13-<\/p>\n
\n(3) all cash dividends or other distributions paid (excluding items
\neliminated in consolidation) on any series of Disqualified Stock during such
\nperiod.<\/p>\n “Foreign Subsidiary<\/u>” means, with respect to any Person, any Restricted
\nSubsidiary of such Person that is not organized or existing under the laws of
\nthe United States, any state thereof, the District of Columbia, or any territory
\nthereof and any Restricted Subsidiary of such Foreign Subsidiary.<\/p>\n “GAAP<\/u>” means generally accepted accounting principles in the United
\nStates which are in effect on the Issue Date.<\/p>\n “Global Note Legend<\/u>” means the legend set forth in Section 2.06(g)(ii)
\nhereof, which is required to be placed on all Global Notes issued under this
\nIndenture.<\/p>\n “Global Notes<\/u>” means, individually and collectively, each of the
\nRestricted Global Notes and the Unrestricted Global Notes, substantially in the
\nform of Exhibit A<\/u> hereto, issued in accordance with Section 2.01,
\n2.06(b), 2.06(d) or 2.06(f) hereof.<\/p>\n “Government Securities<\/u>” means securities that are:<\/p>\n (1) direct obligations of the United States of America for the timely payment
\nof which its full faith and credit is pledged; or<\/p>\n (2) obligations of a Person controlled or supervised by and acting as an
\nagency or instrumentality of the United States of America the timely payment of
\nwhich is unconditionally guaranteed as a full faith and credit obligation by the
\nUnited States of America,<\/p>\n which, in either case, are not callable or redeemable at the option of the
\nissuers thereof, and shall also include a depository receipt issued by a bank
\n(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
\nto any such Government Securities or a specific payment of principal of or
\ninterest on any such Government Securities held by such custodian for the
\naccount of the holder of such depository receipt; provided<\/u> that (except
\nas required by law) such custodian is not authorized to make any deduction from
\nthe amount payable to the holder of such depository receipt from any amount
\nreceived by the custodian in respect of the Government Securities or the
\nspecific payment of principal of or interest on the Government Securities
\nevidenced by such depository receipt.<\/p>\n “guarantee<\/u>” means a guarantee (other than by endorsement of negotiable
\ninstruments for collection in the ordinary course of business), direct or
\nindirect, in any manner (including letters of credit and reimbursement
\nagreements in respect thereof), of all or any part of any Indebtedness or other
\nobligations.<\/p>\n “Guarantee<\/u>” means the guarantee by any Guarantor of the Issuer153s
\nObligations under this Indenture.<\/p>\n “Guarantor<\/u>” means, each Restricted Subsidiary that Guarantees the
\nNotes in accordance with the terms of this Indenture.<\/p>\n “Hedging Obligations<\/u>” means, with respect to any Person, the
\nobligations of such Person under any interest rate swap agreement, interest rate
\ncap agreement, interest rate collar agreement, commodity swap agreement,
\ncommodity cap agreement, commodity collar agreement, foreign exchange contract,
\ncurrency swap agreement or similar agreement providing for the transfer or
\nmitigation of interest rate or currency risks either generally or under specific
\ncontingencies.<\/p>\n -14-<\/p>\n
\n“Holder<\/u>” means the Person in whose name a Note is registered on the
\nRegistrar153s books.<\/p>\n “Indebtedness<\/u>” means, with respect to any Person, without duplication:\n<\/p>\n (1) any indebtedness (including principal and premium) of such Person,
\nwhether or not contingent:<\/p>\n (a) in respect of borrowed money;<\/p>\n (b) evidenced by bonds, notes, debentures or similar instruments or letters
\nof credit or bankers153 acceptances (or, without duplication, reimbursement
\nagreements in respect thereof);<\/p>\n (c) representing the balance deferred and unpaid of the purchase price of any
\nproperty (including Capitalized Lease Obligations), except (i) any such balance
\nthat constitutes a trade payable or similar obligation to a trade creditor, in
\neach case accrued in the ordinary course of business and (ii) any earn-out
\nobligations until, after 30 days of becoming due and payable, has not been paid
\nand such obligation becomes a liability on the balance sheet of such Person in
\naccordance with GAAP; or<\/p>\n (d) representing any Hedging Obligations;<\/p>\n if and to the extent that any of the foregoing Indebtedness (other than
\nletters of credit and Hedging Obligations) would appear as a liability upon a
\nbalance sheet (excluding the footnotes thereto) of such Person prepared in
\naccordance with GAAP;<\/p>\n (2) to the extent not otherwise included, any obligation by such Person to be
\nliable for, or to pay, as obligor, guarantor or otherwise, on the obligations of
\nthe type referred to in clause (1) of a third Person (whether or not such items
\nwould appear upon the balance sheet of the such obligor or guarantor), other
\nthan by endorsement of negotiable instruments for collection in the ordinary
\ncourse of business; and<\/p>\n (3) to the extent not otherwise included, the obligations of the type
\nreferred to in clause (1) of a third Person secured by a Lien on any asset owned
\nby such first Person, whether or not such Indebtedness is assumed by such first
\nPerson;<\/p>\n provided<\/u>, however<\/u>, that notwithstanding the foregoing,
\nIndebtedness shall be deemed not to include (a) Contingent Obligations incurred
\nin the ordinary course of business or (b) obligations under or in respect of
\nReceivables Facilities.<\/p>\n “Indenture<\/u>” means this Indenture, as amended or supplemented from time
\nto time.<\/p>\n “Independent Financial Advisor<\/u>” means an accounting, appraisal,
\ninvestment banking firm or consultant to Persons engaged in Similar Businesses
\nof nationally recognized standing that is, in the good faith judgment of the
\nIssuer, qualified to perform the task for which it has been engaged.<\/p>\n “Indirect Participant<\/u>” means a Person who holds a beneficial interest
\nin a Global Note through a Participant.<\/p>\n “Initial Notes<\/u>” has the meaning set forth in the recitals hereto.<\/p>\n -15-<\/p>\n
\n“Initial Purchasers<\/u>” means Barclays Capital Inc., Banc of America
\nSecurities LLC, Credit Suisse Securities (USA) LLC, UBS Securities LLC, RBC
\nCapital Markets Corporation and Santander Investment Securities Inc.<\/p>\n “Interest Payment Date<\/u>” means February 1 and August 1 of each year to
\nstated maturity.<\/p>\n “Investment Grade Rating<\/u>” means a rating equal to or higher than Baa3
\n(or the equivalent) by Moody153s and BBB- (or the equivalent) by S&P.<\/p>\n “Investment Grade Securities<\/u>” means:<\/p>\n (1) securities issued or directly and fully guaranteed or insured by the
\nUnited States government or any agency or instrumentality thereof (other than
\nCash Equivalents);<\/p>\n (2) debt securities or debt instruments with an Investment Grade Rating, but
\nexcluding any debt securities or instruments constituting loans or advances
\namong the Issuer and its Subsidiaries;<\/p>\n (3) investments in any fund that invests exclusively in investments of the
\ntype described in clauses (1) and (2) which fund may also hold immaterial
\namounts of cash pending investment or distribution; and<\/p>\n (4) corresponding instruments in countries other than the United States
\ncustomarily utilized for high quality investments.<\/p>\n “Investments<\/u>” means, with respect to any Person, all investments by
\nsuch Person in other Persons (including Affiliates) in the form of loans
\n(including guarantees), advances or capital contributions (excluding accounts
\nreceivable, trade credit, advances to customers, commission, travel and similar
\nadvances to officers and employees, in each case made in the ordinary course of
\nbusiness), purchases or other acquisitions for consideration of Indebtedness,
\nEquity Interests or other securities issued by any other Person and investments
\nthat are required by GAAP to be classified on the balance sheet (excluding the
\nfootnotes) of the Issuer in the same manner as the other investments included in
\nthis definition to the extent such transactions involve the transfer of cash or
\nother property. For purposes of the definition of “Unrestricted Subsidiary” and
\nSection 4.07 hereof:<\/p>\n (1) “Investments” shall include the portion (proportionate to the Issuer153s
\nequity interest in such Subsidiary) of the fair market value of the net assets
\nof a Subsidiary of the Issuer at the time that such Subsidiary is designated an
\nUnrestricted Subsidiary; provided<\/u>, however<\/u>, that upon a
\nredesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be
\ndeemed to continue to have a permanent “Investment” in an Unrestricted
\nSubsidiary in an amount (if positive) equal to:<\/p>\n (a) the Issuer “Investment” in such Subsidiary at the time of such
\nredesignation; less<\/p>\n (b) the portion (proportionate to the Issuer153s equity interest in such
\nSubsidiary) of the fair market value of the net assets of such Subsidiary at the
\ntime of such redesignation; and<\/p>\n -16-<\/p>\n
\n(2) any property transferred to or from an Unrestricted Subsidiary shall be
\nvalued at its fair market value at the time of such transfer, in each case as
\ndetermined in good faith by the board of directors of the Issuer.<\/p>\n “Investors<\/u>” means Silver Lake Group, L.L.C., Warburg Pincus LLC and
\neach of their respective Affiliates but not including, however, any portfolio
\ncompanies of any of the foregoing.<\/p>\n “Issue Date<\/u>” means July 29, 2010.<\/p>\n “Issuer<\/u>” means (a) prior to the consummation of the Acquisition, Igloo
\nMerger Corporation and not any of its Affiliates and (b) from and after the
\nconsummation of the Acquisition, Interactive Data Corporation and not any of its
\nSubsidiaries.<\/p>\n “Issuer Order<\/u>” means a written request or order signed on behalf of
\nthe Issuer by an Officer of the Issuer, who must be the principal executive
\nofficer, the principal financial officer, the treasurer or the principal
\naccounting officer of the Issuer, and delivered to the Trustee.<\/p>\n “Legal Holiday<\/u>” means a Saturday, a Sunday or a day on which
\ncommercial banking institutions are not required to be open in the State of New
\nYork.<\/p>\n “Letter of Transmittal<\/u>” means the letter of transmittal to be prepared
\nby the Issuer and sent to all Holders of the Notes for use by such Holders in
\nconnection with the Exchange Offer.<\/p>\n “Lien<\/u>” means, with respect to any asset, any mortgage, lien (statutory
\nor otherwise), pledge, hypothecation, charge, security interest, preference,
\npriority or encumbrance of any kind in respect of such asset, whether or not
\nfiled, recorded or otherwise perfected under applicable law, including any
\nconditional sale or other title retention agreement, any lease in the nature
\nthereof, any option or other agreement to sell or give a security interest in
\nand any filing of or agreement to give any financing statement under the Uniform
\nCommercial Code (or equivalent statutes) of any jurisdiction; provided<\/u>
\nthat in no event shall an operating lease be deemed to constitute a Lien.<\/p>\n “Moody153s<\/u>” means Moody153s Investors Service, Inc. and any successor to
\nits rating agency business.<\/p>\n “Net Income<\/u>” means, with respect to any Person, the net income (loss)
\nof such Person, determined in accordance with GAAP and before any reduction in
\nrespect of Preferred Stock dividends.<\/p>\n “Net Proceeds<\/u>” means the aggregate cash proceeds received by the
\nIssuer or any of its Restricted Subsidiaries in respect of any Asset Sale,
\nincluding any cash received upon the sale or other disposition of any Designated
\nNon-cash Consideration received in any Asset Sale, net of the direct costs
\nrelating to such Asset Sale and the sale or disposition of such Designated
\nNon-cash Consideration, including legal, accounting and investment banking fees,
\nand brokerage and sales commissions, any relocation expenses incurred as a
\nresult thereof, taxes paid or payable as a result thereof (after taking into
\naccount any available tax credits or deductions and any tax sharing
\narrangements), amounts required to be applied to the repayment of principal,
\npremium, if any, and interest on Senior Indebtedness required (other than
\nrequired by clause (1) of Section 4.10(b) hereof) to be paid as a result of such
\ntransaction and any deduction of appropriate amounts to be provided by the
\nIssuer or any of its Restricted Subsidiaries as a reserve in accordance with
\nGAAP against any liabilities associated with the asset disposed of in such
\ntransaction and retained by the Issuer or any of its Restricted Subsidiaries
\nafter such sale or other disposition thereof, including pension and other
\npost-employment benefit liabilities and liabilities related to environmental
\nmatters or against any indemnification obligations associated with such
\ntransaction.<\/p>\n -17-<\/p>\n
\n“Non-U.S. Person<\/u>” means a Person who is not a U.S. Person.<\/p>\n “Notes<\/u>” means the Initial Notes and more particularly means any Note
\nauthenticated and delivered under this Indenture. For all purposes of this
\nIndenture, the term “Notes” shall also include any Additional Notes that may be
\nissued under a supplemental indenture.<\/p>\n “Obligations<\/u>” means any principal, interest (including any interest
\naccruing subsequent to the filing of a petition in bankruptcy, reorganization or
\nsimilar proceeding at the rate provided for in the documentation with respect
\nthereto, whether or not such interest is an allowed claim under applicable
\nstate, federal or foreign law), premium, penalties, fees, indemnifications,
\nreimbursements (including reimbursement obligations with respect to letters of
\ncredit and bankers153 acceptances), damages and other liabilities, and guarantees
\nof payment of such principal, interest, penalties, fees, indemnifications,
\nreimbursements, damages and other liabilities, payable under the documentation
\ngoverning any Indebtedness.<\/p>\n “Offering Memorandum<\/u>” means the offering memorandum, dated July 20,
\n2010, relating to the sale of the Initial Notes.<\/p>\n “Officer<\/u>” means the Chairman of the Board, the Chief Executive
\nOfficer, the Chief Financial Officer, the President, any Executive Vice
\nPresident, Senior Vice President or Vice President, the Treasurer, the Secretary
\nor any other authorized Person of the Issuer or any other Person, as the case
\nmay be.<\/p>\n “Officer153s Certificate<\/u>” means a certificate signed on behalf of the
\nIssuer by an Officer of the Issuer or on behalf of any other Person, as the case
\nmay be, who must be the principal executive officer, the principal financial
\nofficer, the treasurer or the principal accounting officer of the Issuer or such
\nother Person, that meets the requirements set forth in this Indenture.<\/p>\n “Opinion of Counsel<\/u>” means a written opinion from legal counsel who is
\nacceptable to the Trustee. The counsel may be an employee of or counsel to the
\nIssuer or the Trustee.<\/p>\n “Participant<\/u>” means, with respect to the Depositary, Euroclear or
\nClearstream, a Person who has an account with the Depositary, Euroclear or
\nClearstream, respectively (and, with respect to DTC, shall include Euroclear and
\nClearstream).<\/p>\n “Permitted Asset Swap<\/u>” means the concurrent purchase and sale or
\nexchange of Related Business Assets or a combination of Related Business Assets
\nand cash or Cash Equivalents between the Issuer or any of its Restricted
\nSubsidiaries and another Person; provided<\/u>, that any cash or Cash
\nEquivalents received must be applied in accordance with Section 4.10 hereof.\n<\/p>\n “Permitted Holders<\/u>” means each of the Investors and members of
\nmanagement of the Issuer (or its direct parent) who are holders of Equity
\nInterests of the Issuer (or any of its direct or indirect parent companies) on
\nthe Issue Date and any group (within the meaning of Section 13(d)(3) or Section
\n14(d)(2) of the Exchange Act or any successor provision) of which any of the
\nforegoing are members; provided<\/u>, that, in the case of such group and
\nwithout giving effect to the existence of such group or any other group, such
\nInvestors and members of management, collectively, have beneficial ownership of
\nmore than 50% of the total voting power of the Voting Stock of the Issuer or any
\nof its direct or indirect parent companies. Any Person or group whose
\nacquisition of beneficial ownership constitutes a Change of Control in respect
\nof which a Change of Control Offer is made in accordance with the requirements
\nof this Indenture will thereafter, together with its Affiliates, constitute an
\nadditional Permitted Holder.<\/p>\n -18-<\/p>\n
\n“Permitted Investments<\/u>” means:<\/p>\n (1) any Investment in the Issuer or any of its Restricted Subsidiaries;<\/p>\n (2) any Investment in cash and Cash Equivalents or Investment Grade
\nSecurities;<\/p>\n (3) any Investment by the Issuer or any of its Restricted Subsidiaries in a
\nPerson that is engaged in a Similar Business if as a result of such Investment:\n<\/p>\n (a) such Person becomes a Restricted Subsidiary; or<\/p>\n (b) such Person, in one transaction or a series of related transactions, is
\nmerged or consolidated with or into, or transfers or conveys substantially all
\nof its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary,\n<\/p>\n and, in each case, any Investment held by such Person; provided<\/u>, that
\nsuch Investment was not acquired by such Person in contemplation of such
\nacquisition, merger, consolidation or transfer;<\/p>\n (4) any Investment in securities or other assets not constituting cash, Cash
\nEquivalents or Investment Grade Securities and received in connection with an
\nAsset Sale made pursuant to the provisions of Section 4.10 hereof or any other
\ndisposition of assets not constituting an Asset Sale;<\/p>\n (5) any Investment existing on the Issue Date;<\/p>\n (6) any Investment acquired by the Issuer or any of its Restricted
\nSubsidiaries:<\/p>\n (a) in exchange for any other Investment or accounts receivable held by the
\nIssuer or any such Restricted Subsidiary in connection with or as a result of a
\nbankruptcy, workout, reorganization or recapitalization of the issuer of such
\nother Investment or accounts receivable; or<\/p>\n (b) as a result of a foreclosure by the Issuer or any of its Restricted
\nSubsidiaries with respect to any secured Investment or other transfer of title
\nwith respect to any secured Investment in default;<\/p>\n (7) Hedging Obligations permitted under clause (10) of Section 4.09(b)
\nhereof;<\/p>\n (8) any Investment in a Similar Business having an aggregate fair market
\nvalue, taken together with all other Investments made pursuant to this clause
\n(8) that are at that time outstanding, not to exceed the greater of 2.5% of
\nTotal Assets and $85.0 million at the time of such Investment (with the fair
\nmarket value of each Investment being measured at the time made and without
\ngiving effect to subsequent changes in value);<\/p>\n (9) Investments the payment for which consists of Equity Interests (exclusive
\nof Disqualified Stock) of the Issuer, or any of its direct or indirect parent
\ncompanies; provided<\/u>, however<\/u>, that such Equity Interests will not
\nincrease the amount available for Restricted Payments under clause (3) of
\nSection 4.07(a) hereof;<\/p>\n (10) guarantees of Indebtedness permitted under Section 4.09 hereof;<\/p>\n -19-<\/p>\n
\n(11) any transaction to the extent it constitutes an Investment that is
\npermitted and made in accordance with the provisions of Section 4.11(b) hereof
\n(except transactions described in clauses (2), (5) and (9) of Section 4.11(b)
\nhereof);<\/p>\n (12) Investments consisting of purchases and acquisitions of inventory,
\nsupplies, material or equipment;<\/p>\n (13) additional Investments having an aggregate fair market value, taken
\ntogether with all other Investments made pursuant to this clause (13) that are
\nat that time outstanding (without giving effect to the sale of an Unrestricted
\nSubsidiary to the extent the proceeds of such sale do not consist of cash or
\nmarketable securities), not to exceed the greater of 3.0% of Total Assets and
\n$100.0 million at the time of such Investment (with the fair market value of
\neach Investment being measured at the time made and without giving effect to
\nsubsequent changes in value);<\/p>\n (14) Investments relating to a Receivables Subsidiary that, in the good faith
\ndetermination of the Issuer are necessary or advisable to effect any Receivables
\nFacility or any repurchase in connection therewith;<\/p>\n (15) advances to, or guarantees of Indebtedness of, employees not in excess
\nof $10.0 million outstanding at any one time, in the aggregate;<\/p>\n (16) loans and advances to officers, directors and employees for
\nbusiness-related travel expenses, moving expenses and other similar expenses, in
\neach case incurred in the ordinary course of business or consistent with past
\npractices or to fund such Person153s purchase of Equity Interests of the Issuer or
\nany direct or indirect parent company thereof; and<\/p>\n (17) Investments in Unrestricted Subsidiaries having an aggregate fair market
\nvalue, taken together with all other Investments made pursuant to this clause
\n(17) that are at the time outstanding, without giving effect to the sale of an
\nUnrestricted Subsidiary to the extent the proceeds of such sale do not consist
\nof cash or marketable securities, not to exceed the greater of 2.0% of Total
\nAssets and $75.0 million at the time of such Investment (with the fair market
\nvalue of each Investment being measured at the time made and without giving
\neffect to subsequent changes in value).<\/p>\n “Permitted Liens<\/u>” means, with respect to any Person:<\/p>\n (1) pledges or deposits by such Person under workmen153s compensation laws,
\nunemployment insurance laws or similar legislation, or good faith deposits in
\nconnection with bids, tenders, contracts (other than for the payment of
\nIndebtedness) or leases to which such Person is a party, or deposits to secure
\npublic or statutory obligations of such Person or deposits of cash or U.S.
\ngovernment bonds to secure surety or appeal bonds to which such Person is a
\nparty, or deposits as security for contested taxes or import duties or for the
\npayment of rent, in each case incurred in the ordinary course of business;<\/p>\n (2) Liens imposed by law, such as carriers153, warehousemen153s and mechanics153
\nLiens, in each case for sums not yet overdue for a period of more than 30 days
\nor being contested in good faith by appropriate proceedings or other Liens
\narising out of judgments or awards against such Person with respect to which
\nsuch Person shall then be proceeding with an appeal or other proceedings for
\nreview if adequate reserves with respect thereto are maintained on the books of
\nsuch Person in accordance with GAAP;<\/p>\n -20-<\/p>\n
\n(3) Liens for taxes, assessments or other governmental charges not yet
\noverdue for a period of more than 30 days or payable or subject to penalties for
\nnonpayment or which are being contested in good faith by appropriate proceedings
\ndiligently conducted, if adequate reserves with respect thereto are maintained
\non the books of such Person in accordance with GAAP;<\/p>\n (4) Liens in favor of issuers of performance and surety bonds or bid bonds or
\nwith respect to other regulatory requirements or letters of credit issued
\npursuant to the request of and for the account of such Person in the ordinary
\ncourse of its business;<\/p>\n (5) minor survey exceptions, minor encumbrances, easements or reservations
\nof, or rights of others for, licenses, rights-of-way, sewers, electric lines,
\ntelegraph and telephone lines and other similar purposes, or zoning or other
\nrestrictions as to the use of real properties or Liens incidental, to the
\nconduct of the business of such Person or to the ownership of its properties
\nwhich were not incurred in connection with Indebtedness and which do not in the
\naggregate materially adversely affect the value of said properties or materially
\nimpair their use in the operation of the business of such Person;<\/p>\n (6) Liens securing Indebtedness permitted to be incurred pursuant to clause
\n(4), (12) (b), (18) or (19) of Section 4.09(b) hereof; provided<\/u> that
\nLiens securing Indebtedness permitted to be incurred pursuant to clause (18)
\nextend only to the assets of Foreign Subsidiaries and Liens securing
\nIndebtedness permitted to be incurred pursuant to clause (19) are solely on
\nacquired property or the assets of the acquired entity, as the case may be;<\/p>\n (7) Liens existing on the Issue Date;<\/p>\n (8) Liens on property or shares of stock of a Person at the time such Person
\nbecomes a Subsidiary; provided<\/u>, however<\/u>, such Liens are not
\ncreated or incurred in connection with, or in contemplation of, such other
\nPerson becoming such a Subsidiary; provided<\/u>, further<\/u>,
\nhowever<\/u>, that such Liens may not extend to any other property owned by
\nthe Issuer or any of its Restricted Subsidiaries;<\/p>\n (9) Liens on property at the time the Issuer or a Restricted Subsidiary
\nacquired the property, including any acquisition by means of a merger or
\nconsolidation with or into the Issuer or any of its Restricted Subsidiaries;
\nprovided<\/u>, however<\/u>, that such Liens are not created or incurred in
\nconnection with, or in contemplation of, such acquisition; provided<\/u>,
\nfurther<\/u>, however<\/u>, that the Liens may not extend to any other
\nproperty owned by the Issuer or any of its Restricted Subsidiaries;<\/p>\n (10) Liens securing Indebtedness or other obligations of a Restricted
\nSubsidiary owing to the Issuer or another Restricted Subsidiary permitted to be
\nincurred in accordance with Section 4.09 hereof;<\/p>\n (11) Liens securing Hedging Obligations so long as related Indebtedness is,
\nand is permitted to be under this Indenture, secured by a Lien on the same
\nproperty securing such Hedging Obligations;<\/p>\n (12) Liens on specific items of inventory of other goods and proceeds of any
\nPerson securing such Person153s obligations in respect of bankers153 acceptances
\nissued or created for the account of such Person to facilitate the purchase,
\nshipment or storage of such inventory or other goods;<\/p>\n -21-<\/p>\n
\n(13) leases, subleases, licenses or sublicenses granted to others in the
\nordinary course of business which do not materially interfere with the ordinary
\nconduct of the business of the Issuer or any of its Restricted Subsidiaries and
\ndo not secure any Indebtedness;<\/p>\n (14) Liens arising from Uniform Commercial Code financing statement filings
\nregarding operating leases entered into by the Issuer and its Restricted
\nSubsidiaries in the ordinary course of business;<\/p>\n (15) Liens in favor of the Issuer or any Guarantor;<\/p>\n (16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries
\ngranted in the ordinary course of business to the Issuer153s clients;<\/p>\n (17) Liens on accounts receivable and related assets incurred in connection
\nwith a Receivables Facility;<\/p>\n (18) Liens to secure any refinancing, refunding, extension, renewal or
\nreplacement (or successive refinancing, refunding, extensions, renewals or
\nreplacements) as a whole, or in part, of any Indebtedness secured by any Lien
\nreferred to in the foregoing clauses (6), (7), (8) and (9); provided<\/u>,
\nhowever<\/u>, that (a) such new Lien shall be limited to all or part of the
\nsame property that secured the original Lien (plus improvements on such
\nproperty), and (b) the Indebtedness secured by such Lien at such time is not
\nincreased to any amount greater than the sum of (i) the outstanding principal
\namount or, if greater, committed amount of the Indebtedness described under
\nclauses (6), (7), (8) and (9) at the time the original Lien became a Permitted
\nLien under this Indenture, and (ii) an amount necessary to pay any fees and
\nexpenses, including premiums, related to such refinancing, refunding, extension,
\nrenewal or replacement;<\/p>\n (19) deposits made in the ordinary course of business to secure liability to
\ninsurance carriers;<\/p>\n (20) other Liens securing obligations incurred in the ordinary course of
\nbusiness which obligations do not exceed $50.0 million at any one time
\noutstanding;<\/p>\n (21) Liens securing judgments for the payment of money not constituting an
\nEvent of Default under clause (5) under Section 6.01(a) hereof so long as such
\nLiens are adequately bonded and any appropriate legal proceedings that may have
\nbeen duly initiated for the review of such judgment have not been finally
\nterminated or the period within which such proceedings may be initiated has not
\nexpired;<\/p>\n (22) Liens in favor of customs and revenue authorities arising as a matter of
\nlaw to secure payment of customs duties in connection with the importation of
\ngoods in the ordinary course of business;<\/p>\n (23) Liens (i) of a collection bank arising under Section 4-210 of the
\nUniform Commercial Code on items in the course of collection, (ii) attaching to
\ncommodity trading accounts or other commodity brokerage accounts incurred in the
\nordinary course of business, and (iii) in favor of banking institutions arising
\nas a matter of law encumbering deposits (including the right of set-off) and
\nwhich are within the general parameters customary in the banking industry;<\/p>\n -22-<\/p>\n
\n(24) Liens deemed to exist in connection with Investments in repurchase
\nagreements permitted under Section 4.09 hereof; provided<\/u> that such Liens
\ndo not extend to any assets other than those that are the subject of such
\nrepurchase agreement;<\/p>\n (25) Liens encumbering reasonable customary initial deposits and margin
\ndeposits and similar Liens attaching to commodity trading accounts or other
\nbrokerage accounts incurred in the ordinary course of business and not for
\nspeculative purposes;<\/p>\n (26) Liens that are contractual rights of set-off (i) relating to the
\nestablishment of depository relations with banks not given in connection with
\nthe issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts
\nof the Issuer or any of its Restricted Subsidiaries to permit satisfaction of
\noverdraft or similar obligations incurred in the ordinary course of business of
\nthe Issuer and its Restricted Subsidiaries or (iii) relating to purchase orders
\nand other agreements entered into with customers of the Issuer or any of its
\nRestricted Subsidiaries in the ordinary course of business;<\/p>\n (27) Liens securing Indebtedness permitted to be incurred under Credit
\nFacilities, including any letter of credit facility relating thereto, that was
\npermitted by the terms of this Indenture to be incurred pursuant to clause (1)
\nof Section 4.09(b) hereof; and<\/p>\n (28) Liens incurred to secure Obligations in respect of any Indebtedness
\npermitted to be incurred under Section 4.09 hereof; provided<\/u> that, with
\nrespect to Liens securing Obligations permitted under this clause (28), at the
\ntime of incurrence and after giving pro<\/u> forma<\/u> effect thereto, the
\nConsolidated Secured Debt Ratio would be no greater than 4.5 to 1.0.<\/p>\n For purposes of this definition, the term “Indebtedness” shall be deemed to
\ninclude interest on such Indebtedness.<\/p>\n “Person<\/u>” means any individual, corporation, limited liability company,
\npartnership, joint venture, association, joint stock company, trust,
\nunincorporated organization, government or any agency or political subdivision
\nthereof or any other entity.<\/p>\n “Preferred Stock<\/u>” means any Equity Interest with preferential rights
\nof payment of dividends or upon liquidation, dissolution, or winding up.<\/p>\n “Private Placement Legend<\/u>” means the legend set forth in Section
\n2.06(g)(i) hereof to be placed on all Notes issued under this Indenture, except
\nwhere otherwise permitted by the provisions of this Indenture.<\/p>\n “QIB<\/u>” means a “qualified institutional buyer” as defined in Rule 144A.\n<\/p>\n “Qualified Proceeds<\/u>” means assets that are used or useful in, or
\nCapital Stock of any Person engaged in, a Similar Business; provided<\/u>
\nthat the fair market value of any such assets or Capital Stock shall be
\ndetermined by the board of directors of the Issuer in good faith.<\/p>\n “Rating Agencies<\/u>” means Moody153s and S&P or if Moody153s or S&P
\nor both shall not make a rating on the Notes publicly available, a nationally
\nrecognized statistical rating agency or agencies, as the case may be, selected
\nby the Issuer which shall be substituted for Moody153s or S&P or both, as the
\ncase may be.<\/p>\n -23-<\/p>\n
\n“Receivables Facility<\/u>” means any of one or more receivables financing
\nfacilities as amended, supplemented, modified, extended, renewed, restated or
\nrefunded from time to time, the Obligations of which are non-recourse (except
\nfor customary representations, warranties, covenants and indemnities made in
\nconnection with such facilities) to the Issuer or any of its Restricted
\nSubsidiaries (other than a Receivables Subsidiary) pursuant to which the Issuer
\nor any of its Restricted Subsidiaries sells its accounts receivable to either
\n(a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary
\nthat in turn sells its accounts receivable to a Person that is not a Restricted
\nSubsidiary.<\/p>\n “Receivables Fees<\/u>” means distributions or payments made directly or by
\nmeans of discounts with respect to any accounts receivable or participation
\ninterest therein issued or sold in connection with, and other fees paid to a
\nPerson that is not a Restricted Subsidiary in connection with, any Receivables
\nFacility.<\/p>\n “Receivables Subsidiary<\/u>” means any Subsidiary formed for the purpose
\nof, and that solely engages only in one or more Receivables Facilities and other
\nactivities reasonably related thereto.<\/p>\n “Record Date<\/u>” for the interest or Additional Interest, if any, payable
\non any applicable Interest Payment Date means January 15 or July 15 (whether or
\nnot a Business Day) next preceding such Interest Payment Date.<\/p>\n “Registration Rights Agreement<\/u>” means the Registration Rights
\nAgreement related to the Notes, dated as of the Issue Date, among Igloo,
\nInteractive Data, the Guarantors and the Initial Purchasers, as such agreement
\nmay be amended, modified or supplemented from time to time and, with respect to
\nany Additional Notes, one or more registration rights agreements between the
\nIssuer and the other parties thereto, as such agreement(s) may be amended,
\nmodified or supplemented from time to time, relating to rights given by the
\nIssuer to the purchasers of Additional Notes to register such Additional Notes
\nunder the Securities Act.<\/p>\n “Regulation S<\/u>” means Regulation S promulgated under the Securities
\nAct.<\/p>\n “Regulation S Global Note<\/u>” means a Regulation S Temporary Global Note
\nor Regulation S Permanent Global Note, as applicable.<\/p>\n “Regulation S Permanent Global Note<\/u>” means a permanent Global Note in
\nthe form of Exhibit A<\/u> hereto bearing the Global Note Legend and the
\nPrivate Placement Legend and deposited with or on behalf of and registered in
\nthe name of the Depositary or its nominee, issued in a denomination equal to the
\noutstanding principal amount of the Regulation S Temporary Global Note upon
\nexpiration of the Restricted Period.<\/p>\n “Regulation S Temporary Global Note<\/u>” means a temporary Global Note in
\nthe form of Exhibit A<\/u> hereto bearing the Global Note Legend, the Private
\nPlacement Legend and the Regulation S Temporary Global Note Legend and deposited
\nwith or on behalf of and registered in the name of the Depositary or its
\nnominee, issued in a denomination equal to the outstanding principal amount of
\nthe Notes initially sold in reliance on Rule 903.<\/p>\n “Regulation S Temporary Global Note Legend<\/u>” means the legend set forth
\nin Section 2.06(g)(iii) hereof.<\/p>\n “Related Business Assets<\/u>” means assets (other than cash or Cash
\nEquivalents) used or useful in a Similar Business, provided<\/u> that any
\nassets received by the Issuer or a Restricted Subsidiary in exchange for assets
\ntransferred by the Issuer or a Restricted Subsidiary shall not be deemed to be
\nRelated Business Assets if they consist of securities of a Person, unless upon
\nreceipt of the securities of such Person, such Person would become a Restricted
\nSubsidiary.<\/p>\n -24-<\/p>\n
\n“Responsible Officer<\/u>” means, when used with respect to the Trustee,
\nany officer within the corporate trust department of the Trustee, including any
\nvice president, assistant vice president, assistant secretary, assistant
\ntreasurer, trust officer or any other officer of the Trustee who customarily
\nperforms functions similar to those performed by the Persons who at the time
\nshall be such officers, respectively, or to whom any corporate trust matter is
\nreferred because of such Person153s knowledge of and familiarity with the
\nparticular subject and who shall have direct responsibility for the
\nadministration of this Indenture.<\/p>\n “Restricted Definitive Note<\/u>” means a Definitive Note bearing the
\nPrivate Placement Legend.<\/p>\n “Restricted Global Note<\/u>” means a Global Note bearing the Private
\nPlacement Legend.<\/p>\n “Restricted Investment<\/u>” means an Investment other than a Permitted
\nInvestment.<\/p>\n “Restricted Period<\/u>” means the 40-day distribution compliance period as
\ndefined in Regulation S.<\/p>\n “Restricted Subsidiary<\/u>” means, at any time, any direct or indirect
\nSubsidiary of the Issuer (including any Foreign Subsidiary) that is not then an
\nUnrestricted Subsidiary; provided<\/u>, however<\/u>, that upon the
\noccurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted
\nSubsidiary, such Subsidiary shall be included in the definition of “Restricted
\nSubsidiary.”<\/p>\n “Rule 144<\/u>” means Rule 144 promulgated under the Securities Act.<\/p>\n “Rule 144A<\/u>” means Rule 144A promulgated under the Securities Act.<\/p>\n “Rule 903<\/u>” means Rule 903 promulgated under the Securities Act.<\/p>\n “Rule 904<\/u>” means Rule 904 promulgated under the Securities Act.<\/p>\n “S&P<\/u>” means Standard & Poor153s, a division of The McGraw-Hill
\nCompanies, Inc., and any successor to its rating agency business.<\/p>\n “Sale and Lease-Back Transaction<\/u>” means any arrangement providing for
\nthe leasing by the Issuer or any of its Restricted Subsidiaries of any real or
\ntangible personal property, which property has been or is to be sold or
\ntransferred by the Issuer or such Restricted Subsidiary to a third Person in
\ncontemplation of such leasing.<\/p>\n “SEC<\/u>” means the U.S. Securities and Exchange Commission.<\/p>\n “Secured Indebtedness<\/u>” means any Indebtedness of the Issuer or any of
\nits Restricted Subsidiaries secured by a Lien.<\/p>\n “Securities Act<\/u>” means the Securities Act of 1933, as amended, and the
\nrules and regulations of the SEC promulgated thereunder.<\/p>\n -25-<\/p>\n
\n“Senior Credit Facilities<\/u>” means the Credit Facility under the Credit
\nAgreement to be entered into as of the Issue Date by and among Igloo
\nIntermediate Corporation, Igloo, Interactive Data, the lenders party thereto in
\ntheir capacities as lenders thereunder and Bank of America, N.A., as
\nAdministrative Agent, including any guarantees, collateral documents,
\ninstruments and agreements executed in connection therewith, and any amendments,
\nsupplements, modifications, extensions, renewals, restatements, refundings or
\nrefinancings thereof and any indentures or credit facilities or commercial paper
\nfacilities with banks or other institutional lenders or investors that replace,
\nrefund or refinance any part of the loans, notes, other credit facilities or
\ncommitments thereunder, including any such replacement, refunding or refinancing
\nfacility or indenture that increases the amount borrowable thereunder or alters
\nthe maturity thereof (provided<\/u> that such increase in borrowings is
\npermitted under Section 4.09 hereof).<\/p>\n “Senior Indebtedness<\/u>” means:<\/p>\n (1) all Indebtedness of the Issuer or any Guarantor outstanding under the
\nSenior Credit Facilities or Notes and related Guarantees (including interest
\naccruing on or after the filing of any petition in bankruptcy or similar
\nproceeding or for reorganization of the Issuer or any Guarantor (at the rate
\nprovided for in the documentation with respect thereto, regardless of whether or
\nnot a claim for post-filing interest is allowed in such proceedings)), and any
\nand all other fees, expense reimbursement obligations, indemnification amounts,
\npenalties, and other amounts (whether existing on the Issue Date or thereafter
\ncreated or incurred) and all obligations of the Issuer or any Guarantor to
\nreimburse any bank or other Person in respect of amounts paid under letters of
\ncredit, acceptances or other similar instruments;<\/p>\n (2) all Hedging Obligations (and guarantees thereof) owing to a Lender (as
\ndefined in the Senior Credit Facilities) or any Affiliate of such Lender (or any
\nPerson that was a Lender or an Affiliate of such Lender at the time the
\napplicable agreement giving rise to such Hedging Obligation was entered into),
\nprovided<\/u> that such Hedging Obligations are permitted to be incurred under
\nthe terms of this Indenture;<\/p>\n (3) any other Indebtedness of the Issuer or any Guarantor permitted to be
\nincurred under the terms of this Indenture, unless the instrument under which
\nsuch Indebtedness is incurred expressly provides that it is subordinated in
\nright of payment to the Notes or any related Guarantee; and<\/p>\n (4) all Obligations with respect to the items listed in the preceding clauses
\n(1), (2) and (3);<\/p>\n provided<\/u>, however<\/u>, that Senior Indebtedness shall not include:\n<\/p>\n (a) any obligation of such Person to the Issuer or any of its Subsidiaries;\n<\/p>\n (b) any liability for federal, state, local or other taxes owed or owing by
\nsuch Person;<\/p>\n (c) any accounts payable or other liability to trade creditors arising in the
\nordinary course of business;<\/p>\n (d) any Indebtedness or other Obligation of such Person which is subordinate
\nor junior in any respect to any other Indebtedness or other Obligation of such
\nPerson; or<\/p>\n (e) that portion of any Indebtedness which at the time of incurrence is
\nincurred in violation of this Indenture.<\/p>\n -26-<\/p>\n
\n“Shelf Registration Statement<\/u>” means the Shelf Registration Statement
\nas defined in the Registration Rights Agreement.<\/p>\n “Significant Subsidiary<\/u>” means any Restricted Subsidiary that would be
\na “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
\npromulgated pursuant to the Securities Act, as such regulation is in effect on
\nthe Issue Date.<\/p>\n “Similar Business<\/u>” means any business conducted or proposed to be
\nconducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any
\nbusiness that is similar, reasonably related, incidental or ancillary thereto.\n<\/p>\n “Sponsor Management Agreement<\/u>” means the management agreement between
\ncertain of the management companies associated with the Investors and
\nInteractive Data.<\/p>\n “Subordinated Indebtedness<\/u>” means, with respect to the Notes,<\/p>\n (1) any Indebtedness of the Issuer which is by its terms subordinated in
\nright of payment to the Notes, and<\/p>\n (2) any Indebtedness of any Guarantor which is by its terms subordinated in
\nright of payment to the Guarantee of such entity of the Notes.<\/p>\n “Subsidiary<\/u>” means, with respect to any Person:<\/p>\n (1) any corporation, association, or other business entity (other than a
\npartnership, joint venture, limited liability company or similar entity) of
\nwhich more than 50% of the total voting power of shares of Capital Stock
\nentitled (without regard to the occurrence of any contingency) to vote in the
\nelection of directors, managers or trustees thereof is at the time of
\ndetermination owned or controlled, directly or indirectly, by such Person or one
\nor more of the other Subsidiaries of that Person or a combination thereof; and\n<\/p>\n (2) any partnership, joint venture, limited liability company or similar
\nentity of which<\/p>\n (x) more than 50% of the capital accounts, distribution rights, total equity
\nand voting interests or general or limited partnership interests, as applicable,
\nare owned or controlled, directly or indirectly, by such Person or one or more
\nof the other Subsidiaries of that Person or a combination thereof whether in the
\nform of membership, general, special or limited partnership or otherwise, and\n<\/p>\n (y) such Person or any Restricted Subsidiary of such Person is a controlling
\ngeneral partner or otherwise controls such entity.<\/p>\n “Total Assets<\/u>” means the total assets of the Issuer and its Restricted
\nSubsidiaries on a consolidated basis, as shown on the most recent balance sheet
\nof the Issuer or such other Person as may be expressly stated.<\/p>\n “Transaction<\/u>” means the transactions contemplated by the Transaction
\nAgreement, the issuance of the Notes and borrowings under the Senior Credit
\nFacilities as in effect on the Issue Date.<\/p>\n -27-<\/p>\n
\n“Transaction Agreement<\/u>” means the Agreement and Plan of Merger, dated
\nas of May 3, 2010 among Hg Investors LLC, Igloo Merger Corporation and
\nInteractive Data, as the same may be amended prior to the Issue Date.<\/p>\n “Treasury Rate<\/u>” means, as of any Redemption Date, the yield to
\nmaturity as of such Redemption Date of United States Treasury securities with a
\nconstant maturity (as compiled and published in the most recent Federal Reserve
\nStatistical Release H.15 (519) that has become publicly available at least two
\nBusiness Days prior to the Redemption Date (or, if such Statistical Release is
\nno longer published, any publicly available source of similar market data)) most
\nnearly equal to the period from the Redemption Date to August 1, 2014;
\nprovided<\/u>, however<\/u>, that if the period from the Redemption Date to
\nAugust 1, 2014 is less than one year, the weekly average yield on actually
\ntraded United States Treasury securities adjusted to a constant maturity of one
\nyear will be used.<\/p>\n “Trust Indenture Act<\/u>” means the Trust Indenture Act of 1939, as
\namended (15 U.S.C \u00a7 \u00a7 77aaa-77bbbb).<\/p>\n “Trustee<\/u>” means The Bank of New York Mellon Trust Company, N.A., as
\ntrustee, until a successor replaces it in accordance with the applicable
\nprovisions of this Indenture and thereafter means the successor serving
\nhereunder.<\/p>\n “Unrestricted Definitive Note<\/u>” means one or more Definitive Notes that
\ndo not bear and are not required to bear the Private Placement Legend.<\/p>\n “Unrestricted Global Note<\/u>” means a permanent Global Note,
\nsubstantially in the form of Exhibit A<\/u> hereto that bears the Global Note
\nLegend and that has the “Schedule of Exchanges of Interests in the Global Note”
\nattached thereto, and that is deposited with or on behalf of and registered in
\nthe name of the Depositary, representing Notes that do not bear the Private
\nPlacement Legend.<\/p>\n “Unrestricted Subsidiary<\/u>” means:<\/p>\n (1) any Subsidiary of the Issuer which at the time of determination is an
\nUnrestricted Subsidiary (as designated by the Issuer, as provided below); and\n<\/p>\n (2) any Subsidiary of an Unrestricted Subsidiary.<\/p>\n The Issuer may designate any Subsidiary of the Issuer (including any existing
\nSubsidiary and any newly acquired or newly formed Subsidiary) to be an
\nUnrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
\nany Equity Interests or Indebtedness of, or owns or holds any Lien on, any
\nproperty of, the Issuer or any Subsidiary of the Issuer (other than solely any
\nSubsidiary of the Subsidiary to be so designated); provided<\/u> that<\/p>\n (1) any Unrestricted Subsidiary must be an entity of which the Equity
\nInterests entitled to cast at least a majority of the votes that may be cast by
\nall Equity Interests having ordinary voting power for the election of directors
\nor Persons performing a similar function are owned, directly or indirectly, by
\nthe Issuer;<\/p>\n (2) such designation complies with Section 4.07 hereof; and<\/p>\n (3) each of:<\/p>\n (a) the Subsidiary to be so designated; and<\/p>\n (b) its Subsidiaries<\/p>\n -28-<\/p>\n
\nhas not at the time of designation, and does not thereafter, create, incur,
\nissue, assume, guarantee or otherwise become directly or indirectly liable with
\nrespect to any Indebtedness pursuant to which the lender has recourse to any of
\nthe assets of the Issuer or any Restricted Subsidiary.<\/p>\n The Issuer may designate any Unrestricted Subsidiary to be a Restricted
\nSubsidiary; provided<\/u> that, immediately after giving effect to such
\ndesignation, no Default shall have occurred and be continuing and either:<\/p>\n (1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant
\nto the Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof; or\n<\/p>\n (2) the Fixed Charge Coverage Ratio for the Issuer its Restricted
\nSubsidiaries would be greater than such ratio for the Issuer and its Restricted
\nSubsidiaries immediately prior to such designation, in each case on a pro<\/u>
\nforma<\/u> basis taking into account such designation.<\/p>\n Any such designation by the Issuer shall be notified by the Issuer to the
\nTrustee by promptly filing with the Trustee a copy of the resolution of the
\nboard of directors of the Issuer or any committee thereof giving effect to such
\ndesignation and an Officer153s Certificate certifying that such designation
\ncomplied with the foregoing provisions.<\/p>\n “U.S. Person<\/u>” means a U.S. person as defined in Rule 902(k) under the
\nSecurities Act.<\/p>\n “Voting Stock<\/u>” of any Person as of any date means the Capital Stock of
\nsuch Person that is at the time entitled to vote in the election of the board of
\ndirectors of such Person.<\/p>\n “Weighted Average Life to Maturity<\/u>” means, when applied to any
\nIndebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any
\ndate, the quotient obtained by dividing:<\/p>\n (1) the sum of the products of the number of years from the date of
\ndetermination to the date of each successive scheduled principal payment of such
\nIndebtedness or redemption or similar payment with respect to such Disqualified
\nStock or Preferred Stock multiplied by the amount of such payment; by<\/p>\n (2) the sum of all such payments.<\/p>\n “Wholly-Owned Subsidiary<\/u>” of any Person means a Subsidiary of such
\nPerson, 100% of the outstanding Equity Interests of which (other than directors153
\nqualifying shares) shall at the time be owned by such Person or by one or more
\nWholly-Owned Subsidiaries of such Person.<\/p>\n Section 1.02 Other Definitions<\/u>.<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Term<\/p>\n<\/td>\n | <\/td>\n | \n Defined in
\nSection<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Acceptable Commitment”<\/p>\n<\/td>\n | <\/td>\n | \n 4.10<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Affiliate Transaction”<\/p>\n<\/td>\n | <\/td>\n | \n 4.11<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Asset Sale Offer”<\/p>\n<\/td>\n | <\/td>\n | \n 4.10<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Authentication Order”<\/p>\n<\/td>\n | <\/td>\n | \n 2.02<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Change of Control Offer”<\/p>\n<\/td>\n | <\/td>\n | \n 4.14<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n -29-<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Term<\/p>\n<\/td>\n | <\/td>\n | \n Defined in
\nSection<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Change of Control Payment”<\/p>\n<\/td>\n | <\/td>\n | \n 4.14<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Change of Control Payment Date”<\/p>\n<\/td>\n | <\/td>\n | \n 4.14<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Covenant Defeasance”<\/p>\n<\/td>\n | <\/td>\n | \n 8.03<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Covenant Suspension Event”<\/p>\n<\/td>\n | <\/td>\n | \n 4.16<\/p>\n<\/td>\n<\/tr>\n | \n| \n “DTC”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Event of Default”<\/p>\n<\/td>\n | <\/td>\n | \n 6.01<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Excess Proceeds”<\/p>\n<\/td>\n | <\/td>\n | \n 4.10<\/p>\n<\/td>\n<\/tr>\n | \n| \n “incur”<\/p>\n<\/td>\n | <\/td>\n | \n 4.09<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Legal Defeasance”<\/p>\n<\/td>\n | <\/td>\n | \n 8.02<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Note Register”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Offer Amount”<\/p>\n<\/td>\n | <\/td>\n | \n 3.09<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Offer Period”<\/p>\n<\/td>\n | <\/td>\n | \n 3.09<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Pari Passu Indebtedness”<\/p>\n<\/td>\n | <\/td>\n | \n 4.10<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Paying Agent”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchase Date”<\/p>\n<\/td>\n | <\/td>\n | \n 3.09<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Redemption Date”<\/p>\n<\/td>\n | <\/td>\n | \n 3.07<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Refinancing Indebtedness”<\/p>\n<\/td>\n | <\/td>\n | \n 4.09<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Refunding Capital Stock”<\/p>\n<\/td>\n | <\/td>\n | \n 4.07<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Registrar”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Restricted Payments”<\/p>\n<\/td>\n | <\/td>\n | \n 4.07<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Reversion Date”<\/p>\n<\/td>\n | <\/td>\n | \n 4.16<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Second Commitment”<\/p>\n<\/td>\n | <\/td>\n | \n 4.10<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Successor Company”<\/p>\n<\/td>\n | <\/td>\n | \n 5.01<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Successor Person”<\/p>\n<\/td>\n | <\/td>\n | \n 5.01<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Suspended Covenants”<\/p>\n<\/td>\n | <\/td>\n | \n 4.16<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Suspension Period”<\/p>\n<\/td>\n | <\/td>\n | \n 4.16<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Treasury Capital Stock”<\/p>\n<\/td>\n | <\/td>\n | \n 4.07<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Section 1.03 Incorporation by Reference of Trust Indenture Act<\/u>.<\/p>\n Whenever this Indenture refers to a provision of the Trust Indenture Act, the
\nprovision is incorporated by reference in and made a part of this Indenture.\n<\/p>\n The following Trust Indenture Act terms used in this Indenture have the
\nfollowing meanings:<\/p>\n “indenture securities” means the Notes;<\/p>\n “indenture security Holder” means a Holder of a Note;<\/p>\n “indenture to be qualified” means this Indenture;<\/p>\n “indenture trustee” or “institutional trustee” means the Trustee; and<\/p>\n “obligor” on the Notes and the Guarantees means the Issuer and the
\nGuarantors, respectively, and any successor obligor upon the Notes and the
\nGuarantees, respectively.<\/p>\n -30-<\/p>\n
\nAll other terms used in this Indenture that are defined by the Trust
\nIndenture Act, defined by Trust Indenture Act reference to another statute or
\ndefined by SEC rule under the Trust Indenture Act have the meanings so assigned
\nto them.<\/p>\n Section 1.04 Rules of Construction<\/u>.<\/p>\n Unless the context otherwise requires:<\/p>\n (a) a term has the meaning assigned to it;<\/p>\n (b) an accounting term not otherwise defined has the meaning assigned to it
\nin accordance with GAAP;<\/p>\n (c) “or” is not exclusive;<\/p>\n (d) words in the singular include the plural, and in the plural include the
\nsingular;<\/p>\n (e) “will” shall be interpreted to express a command;<\/p>\n (f) provisions apply to successive events and transactions;<\/p>\n (g) references to sections of, or rules under, the Securities Act shall be
\ndeemed to include substitute, replacement or successor sections or rules adopted
\nby the SEC from time to time;<\/p>\n (h) unless the context otherwise requires, any reference to an “Article,”
\n“Section” or “clause” refers to an Article, Section or clause, as the case may
\nbe, of this Indenture; and<\/p>\n (i) the words “herein,” “hereof” and “hereunder” and other words of similar
\nimport refer to this Indenture as a whole and not any particular Article,
\nSection, clause or other subdivision.<\/p>\n Section 1.05 Acts of Holders<\/u>.<\/p>\n (a) Any request, demand, authorization, direction, notice, consent, waiver or
\nother action provided by this Indenture to be given or taken by Holders may be
\nembodied in and evidenced by one or more instruments of substantially similar
\ntenor signed by such Holders in person or by an agent duly appointed in writing.
\nExcept as herein otherwise expressly provided, such action shall become
\neffective when such instrument or instruments or record or both are delivered to
\nthe Trustee and, where it is hereby expressly required, to the Issuer. Proof of
\nexecution of any such instrument or of a writing appointing any such agent, or
\nthe holding by any Person of a Note, shall be sufficient for any purpose of this
\nIndenture and (subject to Section 7.01) conclusive in favor of the Trustee and
\nthe Issuer, if made in the manner provided in this Section 1.05.<\/p>\n (b) The fact and date of the execution by any Person of any such instrument
\nor writing may be proved by the affidavit of a witness of such execution or by
\nthe certificate of any notary public or other officer authorized by law to take
\nacknowledgments of deeds, certifying that the individual signing such instrument
\nor writing acknowledged to him the execution thereof. Where such execution is by
\nor on behalf of any legal entity other than an individual, such certificate or
\naffidavit shall also constitute proof of the authority of the Person executing
\nthe same. The fact and date of the execution of any such instrument or writing,
\nor the authority of the Person executing the same, may also be proved in any
\nother manner that the Trustee deems sufficient.<\/p>\n -31-<\/p>\n
\n(c) The ownership of Notes shall be proved by the Note Register.<\/p>\n (d) Any request, demand, authorization, direction, notice, consent, waiver or
\nother action by the Holder of any Note shall bind every future Holder of the
\nsame Note and the Holder of every Note issued upon the registration of transfer
\nthereof or in exchange therefor or in lieu thereof, in respect of any action
\ntaken, suffered or omitted by the Trustee or the Issuer in reliance thereon,
\nwhether or not notation of such action is made upon such Note.<\/p>\n (e) The Issuer may, in the circumstances permitted by the Trust Indenture
\nAct, set a record date for purposes of determining the identity of Holders
\nentitled to give any request, demand, authorization, direction, notice, consent,
\nwaiver or take any other act, or to vote or consent to any action by vote or
\nconsent authorized or permitted to be given or taken by Holders. Unless
\notherwise specified, if not set by the Issuer prior to the first solicitation of
\na Holder made by any Person in respect of any such action, or in the case of any
\nsuch vote, prior to such vote, any such record date shall be the later of 30
\ndays prior to the first solicitation of such consent or the date of the most
\nrecent list of Holders furnished to the Trustee prior to such solicitation.<\/p>\n (f) Without limiting the foregoing, a Holder entitled to take any action
\nhereunder with regard to any particular Note may do so with regard to all or any
\npart of the principal amount of such Note or by one or more duly appointed
\nagents, each of which may do so pursuant to such appointment with regard to all
\nor any part of such principal amount. Any notice given or action taken by a
\nHolder or its agents with regard to different parts of such principal amount
\npursuant to this paragraph shall have the same effect as if given or taken by
\nseparate Holders of each such different part.<\/p>\n (g) Without limiting the generality of the foregoing, a Holder, including DTC
\nthat is the Holder of a Global Note, may make, give or take, by a proxy or
\nproxies duly appointed in writing, any request, demand, authorization,
\ndirection, notice, consent, waiver or other action provided in this Indenture to
\nbe made, given or taken by Holders, and DTC that is the Holder of a Global Note
\nmay provide its proxy or proxies to the beneficial owners of interests in any
\nsuch Global Note through such depositary153s standing instructions and customary
\npractices.<\/p>\n (h) The Issuer may fix a record date for the purpose of determining the
\nPersons who are beneficial owners of interests in any Global Note held by DTC
\nentitled under the procedures of such depositary to make, give or take, by a
\nproxy or proxies duly appointed in writing, any request, demand, authorization,
\ndirection, notice, consent, waiver or other action provided in this Indenture to
\nbe made, given or taken by Holders. If such a record date is fixed, the Holders
\non such record date or their duly appointed proxy or proxies, and only such
\nPersons, shall be entitled to make, give or take such request, demand,
\nauthorization, direction, notice, consent, waiver or other action, whether or
\nnot such Holders remain Holders after such record date. No such request, demand,
\nauthorization, direction, notice, consent, waiver or other action shall be valid
\nor effective if made, given or taken more than 90 days after such record date.\n<\/p>\n -32-<\/p>\n
\nARTICLE 2<\/p>\n THE NOTES<\/p>\n Section 2.01 Form and Dating; Terms.<\/u><\/p>\n (a) General<\/u>. The Notes and the Trustee153s certificate of authentication
\nshall be substantially in the form of Exhibit A<\/u> hereto. The Notes may
\nhave notations, legends or endorsements required by law, stock exchange rules or
\nusage. Each Note shall be dated the date of its authentication. The Notes shall
\nbe in denominations of $2,000 and integral multiples of $1,000 thereof.<\/p>\n (b) Global Notes<\/u>. Notes issued in global form shall be substantially
\nin the form of Exhibit A<\/u> attached hereto (including the Global Note
\nLegend thereon and the “Schedule of Exchanges of Interests in the Global Note”
\nattached thereto). Notes issued in definitive form shall be substantially in the
\nform of Exhibit A<\/u> attached hereto (but without the Global Note Legend
\nthereon and without the “Schedule of Exchanges of Interests in the Global Note”
\nattached thereto). Each Global Note shall represent such of the outstanding
\nNotes as shall be specified in the “Schedule of Exchanges of Interests in the
\nGlobal Note” attached thereto and each shall provide that it shall represent up
\nto the aggregate principal amount of Notes from time to time endorsed thereon
\nand that the aggregate principal amount of outstanding Notes represented thereby
\nmay from time to time be reduced or increased, as applicable, to reflect
\nexchanges and redemptions. Any endorsement of a Global Note to reflect the
\namount of any increase or decrease in the aggregate principal amount of
\noutstanding Notes represented thereby shall be made by the Trustee or the
\nCustodian, at the direction of the Trustee, in accordance with instructions
\ngiven by the Holder thereof as required by Section 2.06 hereof.<\/p>\n (c) Temporary Global Notes<\/u>. Notes offered and sold in reliance on
\nRegulation S shall be issued initially in the form of the Regulation S Temporary
\nGlobal Note, which shall be deposited on behalf of the purchasers of the Notes
\nrepresented thereby with the Trustee, as custodian for the Depositary, and
\nregistered in the name of the Depositary or the nominee of the Depositary for
\nthe accounts of designated agents holding on behalf of Euroclear or Clearstream,
\nduly executed by the Issuer and authenticated by the Trustee as hereinafter
\nprovided. The Restricted Period shall be terminated upon the receipt by the
\nTrustee of:<\/p>\n (i) a written certificate from the Depositary, together with copies of
\ncertificates from Euroclear and Clearstream certifying that they have received
\ncertification of non-United States beneficial ownership of 100% of the aggregate
\nprincipal amount of the Regulation S Temporary Global Note (except to the extent
\nof any beneficial owners thereof who acquired an interest therein during the
\nRestricted Period pursuant to another exemption from registration under the
\nSecurities Act and who shall take delivery of a beneficial ownership interest in
\na 144A Global Note bearing a Private Placement Legend, all as contemplated by
\nSection 2.06(b) hereof); and<\/p>\n (ii) an Officer153s Certificate from the Issuer.<\/p>\n Following the termination of the Restricted Period, beneficial interests in
\nthe Regulation S Temporary Global Note shall be exchanged for beneficial
\ninterests in the Regulation S Permanent Global Note pursuant to the Applicable
\nProcedures. Simultaneously with the authentication of the Regulation S Permanent
\nGlobal Note, the Trustee shall cancel the Regulation S Temporary Global Note.
\nThe aggregate principal amount of the Regulation S Temporary Global Note and the
\nRegulation S Permanent Global Note may from time to time be increased or
\ndecreased by adjustments made on the records of the Trustee and the Depositary
\nor its nominee, as the case may be, in connection with transfers of interest as
\nhereinafter provided.<\/p>\n -33-<\/p>\n
\n(d) Terms<\/u>. The aggregate principal amount of Notes that may be
\nauthenticated and delivered under this Indenture is unlimited.<\/p>\n The terms and provisions contained in the Notes shall constitute, and are
\nhereby expressly made, a part of this Indenture and the Issuer, the Guarantors
\nand the Trustee, by their execution and delivery of this Indenture, expressly
\nagree to such terms and provisions and to be bound thereby. However, to the
\nextent any provision of any Note conflicts with the express provisions of this
\nIndenture, the provisions of this Indenture shall govern and be controlling.\n<\/p>\n The Notes shall be subject to repurchase by the Issuer pursuant to an Asset
\nSale Offer as provided in Section 4.10 hereof or a Change of Control Offer as
\nprovided in Section 4.14 hereof. The Notes shall not be redeemable, other than
\nas provided in Article 3.<\/p>\n Additional Notes ranking pari passu<\/u> with the Initial Notes may be
\ncreated and issued from time to time by the Issuer without notice to or consent
\nof the Holders and shall be consolidated with and form a single class with the
\nInitial Notes and shall have the same terms as to status, redemption or
\notherwise as the Initial Notes; provided<\/u> that the Issuer153s ability to
\nissue Additional Notes shall be subject to the Issuer153s compliance with Section
\n4.09 hereof. Any Additional Notes shall be issued with the benefit of an
\nindenture supplemental to this Indenture.<\/p>\n (e) Euroclear and Clearstream Procedures Applicable<\/u>. The provisions of
\nthe “Operating Procedures of the Euroclear System” and “Terms and Conditions
\nGoverning Use of Euroclear” and the “General Terms and Conditions of Clearstream
\nBanking” and “Customer Handbook” of Clearstream shall be applicable to transfers
\nof beneficial interests in the Regulation S Temporary Global Note and the
\nRegulation S Permanent Global Notes that are held by Participants through
\nEuroclear or Clearstream.<\/p>\n Section 2.02 Execution and Authentication<\/u>.<\/p>\n At least one Officer shall execute the Notes on behalf of the Issuer by
\nmanual or facsimile signature.<\/p>\n If an Officer whose signature is on a Note no longer holds that office at the
\ntime a Note is authenticated, the Note shall nevertheless be valid.<\/p>\n A Note shall not be entitled to any benefit under this Indenture or be valid
\nor obligatory for any purpose until authenticated substantially in the form of
\nExhibit A<\/u> attached hereto by the manual signature of the Trustee. The
\nsignature shall be conclusive evidence that the Note has been duly authenticated
\nand delivered under this Indenture.<\/p>\n On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an
\n“Authentication Order<\/u>“), authenticate and deliver the Initial Notes. In
\naddition, at any time, from time to time, the Trustee shall upon an
\nAuthentication Order authenticate and deliver any Additional Notes and Exchange
\nNotes for an aggregate principal amount specified in such Authentication Order
\nfor such Additional Notes or Exchange Notes issued hereunder.<\/p>\n The Trustee may appoint an authenticating agent acceptable to the Issuer to
\nauthenticate Notes. An authenticating agent may authenticate Notes whenever the
\nTrustee may do so. Each reference in this Indenture to authentication by the
\nTrustee includes authentication by such agent. An authenticating agent has the
\nsame rights as an Agent to deal with Holders or an Affiliate of the Issuer.<\/p>\n -34-<\/p>\n
\nSection 2.03 Registrar and Paying Agent<\/u>.<\/p>\n The Issuer shall maintain an office or agency where Notes may be presented
\nfor registration of transfer or for exchange (“Registrar<\/u>“) and an office
\nor agency where Notes may be presented for payment (“Paying Agent<\/u>“). The
\nRegistrar shall keep a register of the Notes (“Note Register<\/u>“) and of
\ntheir transfer and exchange. The Issuer may appoint one or more co-registrars
\nand one or more additional paying agents. The term “Registrar” includes any
\nco-registrar and the term “Paying Agent” includes any additional paying agent.
\nThe Issuer may change any Paying Agent or Registrar without prior notice to any
\nHolder. The Issuer shall notify the Trustee in writing of the name and address
\nof any Agent not a party to this Indenture. If the Issuer fails to appoint or
\nmaintain another entity as Registrar or Paying Agent, the Trustee shall act as
\nsuch. The Issuer or any of its Subsidiaries may act as Paying Agent or
\nRegistrar.<\/p>\n The Issuer initially appoints The Depository Trust Company (“DTC<\/u>“) to
\nact as Depositary with respect to the Global Notes.<\/p>\n The Issuer initially appoints the Trustee to act as the Paying Agent and
\nRegistrar for the Notes and to act as Custodian with respect to the Global
\nNotes.<\/p>\n Section 2.04 Paying Agent to Hold Money in Trust<\/u>.<\/p>\n The Issuer shall require each Paying Agent other than the Trustee to agree in
\nwriting that the Paying Agent shall hold in trust for the benefit of Holders or
\nthe Trustee all money held by the Paying Agent for the payment of principal,
\npremium, if any, or Additional Interest, if any, or interest on the Notes, and
\nwill notify the Trustee of any default by the Issuer in making any such payment.
\nWhile any such default continues, the Trustee may require a Paying Agent to pay
\nall money held by it to the Trustee. The Issuer at any time may require a Paying
\nAgent to pay all money held by it to the Trustee. Upon payment over to the
\nTrustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have
\nno further liability for the money. If the Issuer or a Subsidiary acts as Paying
\nAgent, it shall segregate and hold in a separate trust fund for the benefit of
\nthe Holders all money held by it as Paying Agent. Upon any bankruptcy or
\nreorganization proceedings relating to the Issuer, the Trustee shall serve as
\nPaying Agent for the Notes.<\/p>\n Section 2.05 Holder Lists<\/u>.<\/p>\n The Trustee shall preserve in as current a form as is reasonably practicable
\nthe most recent list available to it of the names and addresses of all Holders
\nand shall otherwise comply with Trust Indenture Act Section 312(a). If the
\nTrustee is not the Registrar, the Issuer shall furnish to the Trustee at least
\ntwo Business Days before each Interest Payment Date and at such other times as
\nthe Trustee may request in writing, a list in such form and as of such date as
\nthe Trustee may reasonably require of the names and addresses of the Holders of
\nNotes and the Issuer shall otherwise comply with Trust Indenture Act Section
\n312(a).<\/p>\n Section 2.06 Transfer and Exchange<\/u>.<\/p>\n (a) Transfer and Exchange of Global Notes<\/u>. Except as otherwise set
\nforth in this Section 2.06, a Global Note may be transferred, in whole and not
\nin part, only to another nominee of the Depositary or to a successor Depositary
\nor a nominee of such successor Depositary. A beneficial interest in a Global
\nNote may not be exchanged for a Definitive Note unless (i) the Depositary (x)
\nnotifies the Issuer that it is unwilling or unable to continue as Depositary for
\nsuch Global Note or (y) has ceased to be a clearing agency registered under the
\nExchange Act and, in either case, a successor Depositary is not appointed by the
\nIssuer within 120 days or (ii) there shall have occurred and be continuing a
\nDefault with respect to the Notes. Upon the occurrence of any of the preceding
\nevents in (i) or (ii) above, Definitive Notes delivered in exchange for any
\nGlobal Note or beneficial interests therein will be registered in the names, and
\nissued in any approved denominations, requested by or on behalf of the
\nDepositary (in accordance with its customary procedures). Global Notes also may
\nbe exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
\n2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
\nof, a Global Note or any portion thereof, pursuant to this Section 2.06 or
\nSection 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
\nof, and shall be, a Global Note, except for Definitive Notes issued subsequent
\nto any of the preceding events in (i) or (ii) above and pursuant to Section
\n2.06(c) hereof. A Global Note may not be exchanged for another Note other than
\nas provided in this Section 2.06(a); provided<\/u>, however<\/u>, beneficial
\ninterests in a Global Note may be transferred and exchanged as provided in
\nSection 2.06(b), (c) or (f) hereof.<\/p>\n -35-<\/p>\n
\n(b) Transfer and Exchange of Beneficial Interests in the Global
\nNotes<\/u>. The transfer and exchange of beneficial interests in the Global Notes
\nshall be effected through the Depositary, in accordance with the provisions of
\nthis Indenture and the Applicable Procedures. Beneficial interests in the
\nRestricted Global Notes shall be subject to restrictions on transfer comparable
\nto those set forth herein to the extent required by the Securities Act.
\nTransfers of beneficial interests in the Global Notes also shall require
\ncompliance with either subparagraph (i) or (ii) below, as applicable, as well as
\none or more of the other following subparagraphs, as applicable:<\/p>\n (i) Transfer of Beneficial Interests in the Same Global Note<\/u>.
\nBeneficial interests in any Restricted Global Note may be transferred to Persons
\nwho take delivery thereof in the form of a beneficial interest in the same
\nRestricted Global Note in accordance with the transfer restrictions set forth in
\nthe Private Placement Legend; provided<\/u>, however<\/u>, that prior to the
\nexpiration of the Restricted Period, transfers of beneficial interests in the
\nRegulation S Temporary Global Note may not be made to a U.S. Person or for the
\naccount or benefit of a U.S. Person (other than an Initial Purchaser).
\nBeneficial interests in any Unrestricted Global Note may be transferred to
\nPersons who take delivery thereof in the form of a beneficial interest in an
\nUnrestricted Global Note. No written orders or instructions shall be required to
\nbe delivered to the Registrar to effect the transfers described in this Section
\n2.06(b)(i).<\/p>\n (ii) All Other Transfers and Exchanges of Beneficial Interests in Global
\nNotes<\/u>. In connection with all transfers and exchanges of beneficial
\ninterests that are not subject to Section 2.06(b)(i) hereof, the transferor of
\nsuch beneficial interest must deliver to the Registrar either (A) (1) a written
\norder from a Participant or an Indirect Participant given to the Depositary in
\naccordance with the Applicable Procedures directing the Depositary to credit or
\ncause to be credited a beneficial interest in another Global Note in an amount
\nequal to the beneficial interest to be transferred or exchanged and (2)
\ninstructions given in accordance with the Applicable Procedures containing
\ninformation regarding the Participant account to be credited with such increase
\nor (B) (1) a written order from a Participant or an Indirect Participant given
\nto the Depositary in accordance with the Applicable Procedures directing the
\nDepositary to cause to be issued a Definitive Note in an amount equal to the
\nbeneficial interest to be transferred or exchanged and (2) instructions given by
\nthe Depositary to the Registrar containing information regarding the Person in
\nwhose name such Definitive Note shall be registered to effect the transfer or
\nexchange referred to in (1) above; provided<\/u> that in no event shall
\nDefinitive Notes be issued upon the transfer or exchange of beneficial interests
\nin the Regulation S Temporary Global Note prior to (A) the expiration of the
\nRestricted Period and (B) the receipt by the Registrar of any certificates
\nrequired pursuant to Rule 903. Upon consummation of an Exchange Offer by the
\nIssuer in accordance with Section 2.06(f) hereof, the requirements of this
\nSection 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
\nRegistrar of the instructions contained in the Letter of Transmittal delivered
\nby the Holder of such beneficial interests in the Restricted Global Notes. Upon
\nsatisfaction of all of the requirements for transfer or exchange of beneficial
\ninterests in Global Notes contained in this Indenture and the Notes or otherwise
\napplicable under the Securities Act, the Trustee shall adjust the principal
\namount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.<\/p>\n -36-<\/p>\n
\n(iii) Transfer of Beneficial Interests to Another Restricted Global
\nNote<\/u>. A beneficial interest in any Restricted Global Note may be transferred
\nto a Person who takes delivery thereof in the form of a beneficial interest in
\nanother Restricted Global Note if the transfer complies with the requirements of
\nSection 2.06(b)(ii) hereof and the Registrar receives the following:<\/p>\n (A) if the transferee will take delivery in the form of a beneficial interest
\nin the 144A Global Note, then the transferor must deliver a certificate in the
\nform of Exhibit B<\/u> hereto, including the certifications in item (1)
\nthereof; or<\/p>\n (B) if the transferee will take delivery in the form of a beneficial interest
\nin the Regulation S Global Note, then the transferor must deliver a certificate
\nin the form of Exhibit B<\/u> hereto, including the certifications in item (2)
\nthereof.<\/p>\n (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global
\nNote for Beneficial Interests in an Unrestricted Global Note<\/u>. A beneficial
\ninterest in any Restricted Global Note may be exchanged by any holder thereof
\nfor a beneficial interest in an Unrestricted Global Note or transferred to a
\nPerson who takes delivery thereof in the form of a beneficial interest in an
\nUnrestricted Global Note if the exchange or transfer complies with the
\nrequirements of Section 2.06(b)(ii) hereof and:<\/p>\n (A) such exchange or transfer is effected pursuant to the Exchange Offer in
\naccordance with the Registration Rights Agreement and the holder of the
\nbeneficial interest to be transferred, in the case of an exchange, or the
\ntransferee, in the case of a transfer, certifies in the applicable Letter of
\nTransmittal that it is not (1) a Broker-Dealer, (2) a Person participating in
\nthe distribution of the Exchange Notes or (3) a Person who is an affiliate (as
\ndefined in Rule 144) of the Issuer;<\/p>\n (B) such transfer is effected pursuant to the Shelf Registration Statement in
\naccordance with the Registration Rights Agreement;<\/p>\n (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange
\nOffer Registration Statement in accordance with the Registration Rights
\nAgreement; or<\/p>\n (D) the Registrar receives the following:<\/p>\n (1) if the holder of such beneficial interest in a Restricted Global Note
\nproposes to exchange such beneficial interest for a beneficial interest in an
\nUnrestricted Global Note, a certificate from such Holder substantially in the
\nform of Exhibit C<\/u> hereto, including the certifications in item (1)(a)
\nthereof; or<\/p>\n (2) if the holder of such beneficial interest in a Restricted Global Note
\nproposes to transfer such beneficial interest to a Person who shall take
\ndelivery thereof in the form of a beneficial interest in an Unrestricted Global
\nNote, a certificate from such holder in the form of Exhibit B<\/u> hereto,
\nincluding the certifications in item (4) thereof;<\/p>\n -37-<\/p>\n
\nand, in each such case set forth in this subparagraph (D), if the Registrar
\nso requests or if the Applicable Procedures so require, an Opinion of Counsel in
\nform reasonably acceptable to the Registrar to the effect that such exchange or
\ntransfer is in compliance with the Securities Act and that the restrictions on
\ntransfer contained herein and in the Private Placement Legend are no longer
\nrequired in order to maintain compliance with the Securities Act.<\/p>\n If any such transfer is effected pursuant to subparagraph (B) or (D) above at
\na time when an Unrestricted Global Note has not yet been issued, the Issuer
\nshall issue and, upon receipt of an Authentication Order in accordance with
\nSection 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
\nGlobal Notes in an aggregate principal amount equal to the aggregate principal
\namount of beneficial interests transferred pursuant to subparagraph (B) or (D)
\nabove.<\/p>\n Beneficial interests in an Unrestricted Global Note cannot be exchanged for,
\nor transferred to Persons who take delivery thereof in the form of, a beneficial
\ninterest in a Restricted Global Note.<\/p>\n (c) Transfer or Exchange of Beneficial Interests for Definitive
\nNotes<\/u>.<\/p>\n (i) Beneficial Interests in Restricted Global Notes to Restricted
\nDefinitive Notes<\/u>. If any holder of a beneficial interest in a Restricted
\nGlobal Note proposes to exchange such beneficial interest for a Restricted
\nDefinitive Note or to transfer such beneficial interest to a Person who takes
\ndelivery thereof in the form of a Restricted Definitive Note, then, upon the
\noccurrence of any of the events in paragraph (i) or (ii) of Section 2.06(a)
\nhereof and receipt by the Registrar of the following documentation:<\/p>\n (A) if the holder of such beneficial interest in a Restricted Global Note
\nproposes to exchange such beneficial interest for a Restricted Definitive Note,
\na certificate from such holder substantially in the form of Exhibit C<\/u>
\nhereto, including the certifications in item (2)(a) thereof;<\/p>\n (B) if such beneficial interest is being transferred to a QIB in accordance
\nwith Rule 144A, a certificate substantially in the form of Exhibit B<\/u>
\nhereto, including the certifications in item (1) thereof;<\/p>\n (C) if such beneficial interest is being transferred to a Non-U.S. Person in
\nan offshore transaction in accordance with Rule 903 or Rule 904, a certificate
\nsubstantially in the form of Exhibit B<\/u> hereto, including the
\ncertifications in item (2) thereof;<\/p>\n (D) if such beneficial interest is being transferred pursuant to an exemption
\nfrom the registration requirements of the Securities Act in accordance with Rule
\n144, a certificate substantially in the form of Exhibit B<\/u> hereto,
\nincluding the certifications in item (3)(a) thereof;<\/p>\n (E) if such beneficial interest is being transferred to the Issuer or any of
\nits Restricted Subsidiaries, a certificate substantially in the form of
\nExhibit B<\/u> hereto, including the certifications in item (3)(b) thereof; or\n<\/p>\n (F) if such beneficial interest is being transferred pursuant to an effective
\nregistration statement under the Securities Act, a certificate substantially in
\nthe form of Exhibit B<\/u> hereto, including the certifications in item (3)(c)
\nthereof,<\/p>\n the Trustee shall cause the aggregate principal amount of the applicable
\nGlobal Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
\nthe Issuer shall execute and the Trustee shall authenticate and mail to the
\nPerson designated in the instructions a Definitive Note in the applicable
\nprincipal amount. Any Definitive Note issued in exchange for a beneficial
\ninterest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
\nregistered in such name or names and in such authorized denomination or
\ndenominations as the holder of such beneficial interest shall instruct the
\nRegistrar through instructions from the Depositary and the Participant or
\nIndirect Participant. The Trustee shall mail such Definitive Notes to the
\nPersons in whose names such Notes are so registered. Any Definitive Note issued
\nin exchange for a beneficial interest in a Restricted Global Note pursuant to
\nthis Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
\nsubject to all restrictions on transfer contained therein.<\/p>\n -38-<\/p>\n
\n(ii) Beneficial Interests in Regulation S Temporary Global Note to
\nDefinitive Notes<\/u>. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
\nbeneficial interest in the Regulation S Temporary Global Note may not be
\nexchanged for a Definitive Note or transferred to a Person who takes delivery
\nthereof in the form of a Definitive Note prior to (A) the expiration of the
\nRestricted Period and (B) the receipt by the Registrar of any certificates
\nrequired pursuant to Rule 903(b)(3)(ii)(B) of the Securities Act, except in the
\ncase of a transfer pursuant to an exemption from the registration requirements
\nof the Securities Act other than Rule 903 or Rule 904.<\/p>\n (iii) Beneficial Interests in Restricted Global Notes to Unrestricted
\nDefinitive Notes<\/u>. A holder of a beneficial interest in a Restricted Global
\nNote may exchange such beneficial interest for an Unrestricted Definitive Note
\nor may transfer such beneficial interest to a Person who takes delivery thereof
\nin the form of an Unrestricted Definitive Note only upon the occurrence of any
\nof the events in subsection (i) or (ii) of Section 2.06(a) hereof and if:<\/p>\n (A) such exchange or transfer is effected pursuant to the Exchange Offer in
\naccordance with the Registration Rights Agreement and the holder of such
\nbeneficial interest, in the case of an exchange, or the transferee, in the case
\nof a transfer, certifies in the applicable Letter of Transmittal that it is not
\n(1) a Broker-Dealer, (2) a Person participating in the distribution of the
\nExchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of
\nthe Issuer;<\/p>\n (B) such transfer is effected pursuant to the Shelf Registration Statement in
\naccordance with the Registration Rights Agreement;<\/p>\n (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange
\nOffer Registration Statement in accordance with the Registration Rights
\nAgreement; or<\/p>\n (D) the Registrar receives the following:<\/p>\n (1) if the holder of such beneficial interest in a Restricted Global Note
\nproposes to exchange such beneficial interest for an Unrestricted Definitive
\nNote, a certificate from such holder substantially in the form of Exhibit
\nC<\/u> hereto, including the certifications in item (1)(b) thereof; or<\/p>\n (2) if the holder of such beneficial interest in a Restricted Global Note
\nproposes to transfer such beneficial interest to a Person who shall take
\ndelivery thereof in the form of an Unrestricted Definitive Note, a certificate
\nfrom such holder substantially in the form of Exhibit B<\/u> hereto, including
\nthe certifications in item (4) thereof;<\/p>\n and, in each such case set forth in this subparagraph (D), if the Registrar
\nso requests or if the Applicable Procedures so require, an Opinion of Counsel in
\nform reasonably acceptable to the Registrar to the effect that such exchange or
\ntransfer is in compliance with the Securities Act and that the restrictions on
\ntransfer contained herein and in the Private Placement Legend are no longer
\nrequired in order to maintain compliance with the Securities Act.<\/p>\n -39-<\/p>\n
\n(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted
\nDefinitive Notes<\/u>. If any holder of a beneficial interest in an Unrestricted
\nGlobal Note proposes to exchange such beneficial interest for a Definitive Note
\nor to transfer such beneficial interest to a Person who takes delivery thereof
\nin the form of a Definitive Note, then, upon the occurrence of any of the events
\nin subsection (i) or (ii) of Section 2.06(a) hereof and satisfaction of the
\nconditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the
\naggregate principal amount of the applicable Global Note to be reduced
\naccordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and
\nthe Trustee shall authenticate and mail to the Person designated in the
\ninstructions a Definitive Note in the applicable principal amount. Any
\nDefinitive Note issued in exchange for a beneficial interest pursuant to this
\nSection 2.06(c)(iv) shall be registered in such name or names and in such
\nauthorized denomination or denominations as the holder of such beneficial
\ninterest shall instruct the Registrar through instructions from or through the
\nDepositary and the Participant or Indirect Participant. The Trustee shall mail
\nsuch Definitive Notes to the Persons in whose names such Notes are so
\nregistered. Any Definitive Note issued in exchange for a beneficial interest
\npursuant to this Section 2.06(c)(iv) shall not bear the Private Placement
\nLegend.<\/p>\n (d) Transfer and Exchange of Definitive Notes for Beneficial
\nInterests<\/u>.<\/p>\n (i) Restricted Definitive Notes to Beneficial Interests in Restricted
\nGlobal Notes<\/u>. If any Holder of a Restricted Definitive Note proposes to
\nexchange such Note for a beneficial interest in a Restricted Global Note or to
\ntransfer such Restricted Definitive Note to a Person who takes delivery thereof
\nin the form of a beneficial interest in a Restricted Global Note, then, upon
\nreceipt by the Registrar of the following documentation:<\/p>\n (A) if the Holder of such Restricted Definitive Note proposes to exchange
\nsuch Note for a beneficial interest in a Restricted Global Note, a certificate
\nfrom such Holder substantially in the form of Exhibit C<\/u> hereto, including
\nthe certifications in item (2)(b) thereof;<\/p>\n (B) if such Restricted Definitive Note is being transferred to a QIB in
\naccordance with Rule 144A, a certificate substantially in the form of
\nExhibit B<\/u> hereto, including the certifications in item (1) thereof;<\/p>\n (C) if such Restricted Definitive Note is being transferred to a Non-U.S.
\nPerson in an offshore transaction in accordance with Rule 903 or Rule 904, a
\ncertificate substantially in the form of Exhibit B<\/u> hereto, including the
\ncertifications in item (2) thereof;<\/p>\n (D) if such Restricted Definitive Note is being transferred pursuant to an
\nexemption from the registration requirements of the Securities Act in accordance
\nwith Rule 144, a certificate substantially in the form of Exhibit B<\/u>
\nhereto, including the certifications in item (3)(a) thereof;<\/p>\n (E) if such Restricted Definitive Note is being transferred to the Issuer or
\nany of its Restricted Subsidiaries, a certificate substantially in the form of
\nExhibit B<\/u> hereto, including the certifications in item (3)(b) thereof; or\n<\/p>\n (F) if such Restricted Definitive Note is being transferred pursuant to an
\neffective registration statement under the Securities Act, a certificate
\nsubstantially in the form of Exhibit B<\/u> hereto, including the
\ncertifications in item (3)(c) thereof,<\/p>\n -40-<\/p>\n
\nthe Trustee shall cancel the Restricted Definitive Note, increase or cause to
\nbe increased the aggregate principal amount of, in the case of clause (A) above,
\nthe applicable Restricted Global Note, in the case of clause (B) above, the
\napplicable 144A Global Note, and in the case of clause (C) above, the applicable
\nRegulation S Global Note.<\/p>\n (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted
\nGlobal Notes<\/u>. A Holder of a Restricted Definitive Note may exchange such
\nNote for a beneficial interest in an Unrestricted Global Note or transfer such
\nRestricted Definitive Note to a Person who takes delivery thereof in the form of
\na beneficial interest in an Unrestricted Global Note only if:<\/p>\n (A) such exchange or transfer is effected pursuant to the Exchange Offer in
\naccordance with the Registration Rights Agreement and the Holder, in the case of
\nan exchange, or the transferee, in the case of a transfer, certifies in the
\napplicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
\nPerson participating in the distribution of the Exchange Notes or (3) a Person
\nwho is an affiliate (as defined in Rule 144) of the Issuer;<\/p>\n (B) such transfer is effected pursuant to the Shelf Registration Statement in
\naccordance with the Registration Rights Agreement;<\/p>\n (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange
\nOffer Registration Statement in accordance with the Registration Rights
\nAgreement; or<\/p>\n (D) the Registrar receives the following:<\/p>\n (1) if the Holder of such Definitive Notes proposes to exchange such Notes
\nfor a beneficial interest in the Unrestricted Global Note, a certificate from
\nsuch Holder substantially in the form of Exhibit C<\/u> hereto, including the
\ncertifications in item (1)(c) thereof; or<\/p>\n (2) if the Holder of such Definitive Notes proposes to transfer such Notes to
\na Person who shall take delivery thereof in the form of a beneficial interest in
\nthe Unrestricted Global Note, a certificate from such Holder substantially in
\nthe form of Exhibit B<\/u> hereto, including the certifications in item (4)
\nthereof;<\/p>\n and, in each such case set forth in this subparagraph (D), if the Registrar
\nso requests or if the Applicable Procedures so require, an Opinion of Counsel in
\nform reasonably acceptable to the Registrar to the effect that such exchange or
\ntransfer is in compliance with the Securities Act and that the restrictions on
\ntransfer contained herein and in the Private Placement Legend are no longer
\nrequired in order to maintain compliance with the Securities Act.<\/p>\n Upon satisfaction of the conditions of any of the subparagraphs in this
\nSection 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase
\nor cause to be increased the aggregate principal amount of the Unrestricted
\nGlobal Note.<\/p>\n (iii) Unrestricted Definitive Notes to Beneficial Interests in
\nUnrestricted Global Notes<\/u>. A Holder of an Unrestricted Definitive Note may
\nexchange such Note for a beneficial interest in an Unrestricted Global Note or
\ntransfer such Definitive Notes to a Person who takes delivery thereof in the
\nform of a beneficial interest in an Unrestricted Global Note at any time. Upon
\nreceipt of a request for such an exchange or transfer, the Trustee shall cancel
\nthe applicable Unrestricted Definitive Note and increase or cause to be
\nincreased the aggregate principal amount of one of the Unrestricted Global
\nNotes.<\/p>\n -41-<\/p>\n
\nIf any such exchange or transfer from a Definitive Note to a beneficial
\ninterest is effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at
\na time when an Unrestricted Global Note has not yet been issued, the Issuer
\nshall issue and, upon receipt of an Authentication Order in accordance with
\nSection 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
\nGlobal Notes in an aggregate principal amount equal to the principal amount of
\nDefinitive Notes so transferred.<\/p>\n (e) Transfer and Exchange of Definitive Notes for Definitive Notes<\/u>.
\nUpon request by a Holder of Definitive Notes and such Holder153s compliance with
\nthe provisions of this Section 2.06(e), the Registrar shall register the
\ntransfer or exchange of Definitive Notes. Prior to such registration of transfer
\nor exchange, the requesting Holder shall present or surrender to the Registrar
\nthe Definitive Notes duly endorsed or accompanied by a written instruction of
\ntransfer in form satisfactory to the Registrar duly executed by such Holder or
\nby its attorney, duly authorized in writing. In addition, the requesting Holder
\nshall provide any additional certifications, documents and information, as
\napplicable, required pursuant to the following provisions of this Section
\n2.06(e):<\/p>\n (i) Restricted Definitive Notes to Restricted Definitive Notes<\/u>. Any
\nRestricted Definitive Note may be transferred to and registered in the name of
\nPersons who take delivery thereof in the form of a Restricted Definitive Note if
\nthe Registrar receives the following:<\/p>\n (A) if the transfer will be made pursuant to a QIB in accordance with Rule
\n144A, then the transferor must deliver a certificate substantially in the form
\nof Exhibit B<\/u> hereto, including the certifications in item (1) thereof;\n<\/p>\n (B) if the transfer will be made pursuant to Rule 903 or Rule 904 then the
\ntransferor must deliver a certificate in the form of Exhibit B<\/u> hereto,
\nincluding the certifications in item (2) thereof; or<\/p>\n (C) if the transfer will be made pursuant to any other exemption from the
\nregistration requirements of the Securities Act, then the transferor must
\ndeliver a certificate in the form of Exhibit B<\/u> hereto, including the
\ncertifications required by item (3) thereof, if applicable.<\/p>\n (ii) Restricted Definitive Notes to Unrestricted Definitive Notes<\/u>. Any
\nRestricted Definitive Note may be exchanged by the Holder thereof for an
\nUnrestricted Definitive Note or transferred to a Person or Persons who take
\ndelivery thereof in the form of an Unrestricted Definitive Note if:<\/p>\n (A) such exchange or transfer is effected pursuant to the Exchange Offer in
\naccordance with the Registration Rights Agreement and the Holder, in the case of
\nan exchange, or the transferee, in the case of a transfer, certifies in the
\napplicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
\nPerson participating in the distribution of the Exchange Notes or (3) a Person
\nwho is an affiliate (as defined in Rule 144) of the Issuer;<\/p>\n (B) any such transfer is effected pursuant to the Shelf Registration
\nStatement in accordance with the Registration Rights Agreement;<\/p>\n (C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
\nOffer Registration Statement in accordance with the Registration Rights
\nAgreement; or<\/p>\n -42-<\/p>\n
\n(D) the Registrar receives the following:<\/p>\n (1) if the Holder of such Restricted Definitive Notes proposes to exchange
\nsuch Notes for an Unrestricted Definitive Note, a certificate from such Holder
\nsubstantially in the form of Exhibit C<\/u> hereto, including the
\ncertifications in item (1)(d) thereof; or<\/p>\n (2) if the Holder of such Restricted Definitive Notes proposes to transfer
\nsuch Notes to a Person who shall take delivery thereof in the form of an
\nUnrestricted Definitive Note, a certificate from such Holder substantially in
\nthe form of Exhibit B<\/u> hereto, including the certifications in item (4)
\nthereof;<\/p>\n and, in each such case set forth in this subparagraph (D), if the Registrar
\nso requests, an Opinion of Counsel in form reasonably acceptable to the
\nRegistrar to the effect that such exchange or transfer is in compliance with the
\nSecurities Act and that the restrictions on transfer contained herein and in the
\nPrivate Placement Legend are no longer required in order to maintain compliance
\nwith the Securities Act.<\/p>\n (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes<\/u>.
\nA Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
\nwho takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
\nreceipt of a request to register such a transfer, the Registrar shall register
\nthe Unrestricted Definitive Notes pursuant to the instructions from the Holder
\nthereof.<\/p>\n (f) Exchange Offer<\/u>. Upon the occurrence of the Exchange Offer in
\naccordance with the Registration Rights Agreement, the Issuer shall issue and,
\nupon receipt of an Authentication Order in accordance with Section 2.02 hereof,
\nthe Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
\naggregate principal amount equal to the principal amount of the beneficial
\ninterests in the Restricted Global Notes tendered for acceptance by Persons that
\ncertify in the applicable letters of transmittal that (x) they are not
\nBroker-Dealers, (y) they are not participating in a distribution of the Exchange
\nNotes and (z) they are not affiliates (as defined in Rule 144) of the Issuer,
\nand accepted for exchange in the Exchange Offer and (ii) Unrestricted Definitive
\nNotes in an aggregate principal amount equal to the principal amount of the
\nRestricted Definitive Notes tendered for acceptance by Persons that certify in
\nthe applicable Letters of Transmittal that (x) they are not Broker-Dealers, (y)
\nthey are not participating in a distribution of the Exchange Notes and (z) they
\nare not affiliates (as defined in Rule 144) of the Issuer, and accepted for
\nexchange in the Exchange Offer. Concurrently with the issuance of such Notes,
\nthe Trustee shall cause the aggregate principal amount of the applicable
\nRestricted Global Notes to be reduced accordingly, and the Issuer shall execute
\nand the Trustee shall authenticate and mail to the Persons designated by the
\nHolders of Definitive Notes so accepted Unrestricted Definitive Notes in the
\napplicable principal amount. Any Notes that remain outstanding after the
\nconsummation of the Exchange Offer, and Exchange Notes issued in connection with
\nthe Exchange Offer, shall be treated as a single class of securities under this
\nIndenture.<\/p>\n -43-<\/p>\n
\n(g) Legends<\/u>. The following legends shall appear on the face of all
\nGlobal Notes and Definitive Notes issued under this Indenture unless
\nspecifically stated otherwise in the applicable provisions of this Indenture:\n<\/p>\n (i) Private Placement Legend<\/u>.<\/p>\n (A) Except as permitted by subparagraph (B) below, each Global Note and each
\nDefinitive Note (and all Notes issued in exchange therefor or substitution
\nthereof) shall bear the legend in substantially the following form:<\/p>\n “THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
\nAS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
\nWITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
\nEXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
\nTHAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
\nTHE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
\nSECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
\nSECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
\nSECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
\nUNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
\nUNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
\nTRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT
\nTO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
\n(IF AVAILABLE), (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
\nREQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
\nISSUER SO REQUESTS), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
\nUNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
\nTHIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
\nLEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND
\n“U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
\nSECURITIES ACT.”<\/p>\n (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
\npursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii),
\n(e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor
\nor substitution thereof) shall not bear the Private Placement Legend.<\/p>\n -44-<\/p>\n
\n(ii) Global Note Legend<\/u>. Each Global Note shall bear a legend in
\nsubstantially the following form:<\/p>\n “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
\nGOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
\nOWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
\nEXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
\nPURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
\nEXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
\n(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
\nTO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
\nA SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND
\nUNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
\nNOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
\nTHE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
\nNOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
\nSUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
\nCERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
\nCOMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT
\nFOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
\nREGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
\nBY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
\nCO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
\nDTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
\nANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
\nHAS AN INTEREST HEREIN.”<\/p>\n (iii) Regulation S Temporary Global Note Legend<\/u>. The Regulation S
\nTemporary Global Note shall bear a legend in substantially the following form:\n<\/p>\n “THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
\nCONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
\nSPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”<\/p>\n (h) Cancellation and\/or Adjustment of Global Notes<\/u>. At such time as
\nall beneficial interests in a particular Global Note have been exchanged for
\nDefinitive Notes or a particular Global Note has been redeemed, repurchased or
\ncanceled in whole and not in part, each such Global Note shall be returned to or
\nretained and canceled by the Trustee in accordance with Section 2.11 hereof. At
\nany time prior to such cancellation, if any beneficial interest in a Global Note
\nis exchanged for or transferred to a Person who will take delivery thereof in
\nthe form of a beneficial interest in another Global Note or for Definitive
\nNotes, the principal amount of Notes represented by such Global Note shall be
\nreduced accordingly and an endorsement shall be made on such Global Note by the
\nTrustee or by the Depositary at the direction of the Trustee to reflect such
\nreduction; and if the beneficial interest is being exchanged for or transferred
\nto a Person who will take delivery thereof in the form of a beneficial interest
\nin another Global Note, such other Global Note shall be increased accordingly
\nand an endorsement shall be made on such Global Note by the Trustee or by the
\nDepositary at the direction of the Trustee to reflect such increase.<\/p>\n -45-<\/p>\n
\n(i) General Provisions Relating to Transfers and Exchanges<\/u>.<\/p>\n (i) To permit registrations of transfers and exchanges, the Issuer shall
\nexecute and the Trustee shall authenticate Global Notes and Definitive Notes
\nupon receipt of an Authentication Order in accordance with Section 2.02 hereof
\nor at the Registrar153s request.<\/p>\n (ii) No service charge shall be made to a holder of a beneficial interest in
\na Global Note or to a Holder of a Definitive Note for any registration of
\ntransfer or exchange, but the Issuer may require payment of a sum sufficient to
\ncover any transfer tax or similar governmental charge payable in connection
\ntherewith (other than any such transfer taxes or similar governmental charge
\npayable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09,
\n4.10, 4.14 and 9.05 hereof).<\/p>\n (iii) Neither the Registrar nor the Issuer shall be required to register the
\ntransfer of or exchange any Note selected for redemption in whole or in part,
\nexcept the unredeemed portion of any Note being redeemed in part.<\/p>\n (iv) All Global Notes and Definitive Notes issued upon any registration of
\ntransfer or exchange of Global Notes or Definitive Notes shall be the valid
\nobligations of the Issuer, evidencing the same debt, and entitled to the same
\nbenefits under this Indenture, as the Global Notes or Definitive Notes
\nsurrendered upon such registration of transfer or exchange.<\/p>\n (v) The Issuer shall not be required (A) to issue, to register the transfer
\nof or to exchange any Notes during a period beginning at the opening of business
\n15 days before the day of any selection of Notes for redemption under Section
\n3.02 hereof and ending at the close of business on the day of selection, (B) to
\nregister the transfer of or to exchange any Note so selected for redemption or
\ntendered (and not withdrawn) for repurchase in connection with a Change of
\nControl Offer, an Asset Sale Offer or other tender offer, in whole or in part,
\nexcept the unredeemed portion of any Note being redeemed in part or (C) to
\nregister the transfer of or to exchange a Note between a Record Date and the
\nnext succeeding Interest Payment Date.<\/p>\n (vi) Prior to due presentment for the registration of a transfer of any Note,
\nthe Trustee, any Agent and the Issuer may deem and treat the Person in whose
\nname any Note is registered as the absolute owner of such Note for the purpose
\nof receiving payment of principal of (and premium, if any) and interest
\n(including Additional Interest, if any) on such Notes and for all other
\npurposes, and none of the Trustee, any Agent or the Issuer shall be affected by
\nnotice to the contrary.<\/p>\n (vii) Upon surrender for registration of transfer of any Note at the office
\nor agency of the Issuer designated pursuant to Section 4.02 hereof, the Issuer
\nshall execute, and the Trustee shall authenticate and mail, in the name of the
\ndesignated transferee or transferees, one or more replacement Notes of any
\nauthorized denomination or denominations of a like aggregate principal amount.\n<\/p>\n (viii) At the option of the Holder, Notes may be exchanged for other Notes of
\nany authorized denomination or denominations of a like aggregate principal
\namount upon surrender of the Notes to be exchanged at such office or agency.
\nWhenever any Global Notes or Definitive Notes are so surrendered for exchange,
\nthe Issuer shall execute, and the Trustee shall authenticate and mail, the
\nreplacement Global Notes and Definitive Notes which the Holder making the
\nexchange is entitled to in accordance with the provisions of Section 2.02
\nhereof.<\/p>\n (ix) All certifications, certificates and Opinions of Counsel required to be
\nsubmitted to the Registrar pursuant to this Section 2.06 to effect a
\nregistration of transfer or exchange may be submitted by facsimile.<\/p>\n -46-<\/p>\n
\nSection 2.07 Replacement Notes<\/u>.<\/p>\n If any mutilated Note is surrendered to the Trustee, the Registrar or the
\nIssuer and the Trustee receives evidence to its satisfaction of the ownership
\nand destruction, loss or theft of any Note, the Issuer shall issue and the
\nTrustee, upon receipt of an Authentication Order, shall authenticate a
\nreplacement Note if the Trustee153s requirements are met. If required by the
\nTrustee or the Issuer, an indemnity bond must be supplied by the Holder that is
\nsufficient in the judgment of the Trustee and the Issuer to protect the Issuer,
\nthe Trustee, any Agent and any authenticating agent from any loss that any of
\nthem may suffer if a Note is replaced. The Issuer may charge for its expenses in
\nreplacing a Note.<\/p>\n Every replacement Note is a contractual obligation of the Issuer and shall be
\nentitled to all of the benefits of this Indenture equally and proportionately
\nwith all other Notes duly issued hereunder.<\/p>\n Section 2.08 Outstanding Notes<\/u>.<\/p>\n The Notes outstanding at any time are all the Notes authenticated by the
\nTrustee except for those canceled by it, those delivered to it for cancellation,
\nthose reductions in the interest in a Global Note effected by the Trustee in
\naccordance with the provisions hereof, and those described in this Section 2.08
\nas not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
\ncease to be outstanding because the Issuer or an Affiliate of the Issuer holds
\nthe Note.<\/p>\n If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
\noutstanding unless the Trustee receives proof satisfactory to it that the
\nreplaced Note is held by a bona fide purchaser.<\/p>\n If the principal amount of any Note is considered paid under Section 4.01
\nhereof, it ceases to be outstanding and interest on it ceases to accrue.<\/p>\n If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of
\nany thereof) holds, on a redemption date or maturity date, money sufficient to
\npay Notes payable on that date, then on and after that date such Notes shall be
\ndeemed to be no longer outstanding and shall cease to accrue interest.<\/p>\n Section 2.09 Treasury Notes<\/u>.<\/p>\n In determining whether the Holders of the required principal amount of Notes
\nhave concurred in any direction, waiver or consent, Notes owned by the Issuer,
\nor by any Affiliate of the Issuer, shall be considered as though not
\noutstanding, except that for the purposes of determining whether the Trustee
\nshall be protected in relying on any such direction, waiver or consent, only
\nNotes that a Responsible Officer of the Trustee knows are so owned shall be so
\ndisregarded. Notes so owned which have been pledged in good faith shall not be
\ndisregarded if the pledgee establishes to the satisfaction of the Trustee the
\npledgee153s right to deliver any such direction, waiver or consent with respect to
\nthe Notes and that the pledgee is not the Issuer or any obligor upon the Notes
\nor any Affiliate of the Issuer or of such other obligor.<\/p>\n Section 2.10 Temporary Notes<\/u>.<\/p>\n Until certificates representing Notes are ready for delivery, the Issuer may
\nprepare and the Trustee, upon receipt of an Authentication Order, shall
\nauthenticate temporary Notes. Temporary Notes shall be substantially in the form
\nof certificated Notes but may have variations that the Issuer considers
\nappropriate for temporary Notes and as shall be reasonably acceptable to the
\nTrustee. Without unreasonable delay, the Issuer shall prepare and the Trustee
\nshall authenticate definitive Notes in exchange for temporary Notes.<\/p>\n -47-<\/p>\n
\nHolders and beneficial holders, as the case may be, of temporary Notes shall
\nbe entitled to all of the benefits accorded to Holders, or beneficial holders,
\nrespectively, of Notes under this Indenture.<\/p>\n Section 2.11 Cancellation<\/u>.<\/p>\n The Issuer at any time may deliver Notes to the Trustee for cancellation. The
\nRegistrar and Paying Agent shall forward to the Trustee any Notes surrendered to
\nthem for registration of transfer, exchange or payment. The Trustee or, at the
\ndirection of the Trustee, the Registrar or the Paying Agent and no one else
\nshall cancel all Notes surrendered for registration of transfer, exchange,
\npayment, replacement or cancellation and shall destroy cancelled Notes (subject
\nto the record retention requirement of the Exchange Act). Certification of the
\ndestruction of all cancelled Notes shall be delivered to the Issuer. The Issuer
\nmay not issue new Notes to replace Notes that it has paid or that have been
\ndelivered to the Trustee for cancellation.<\/p>\n Section 2.12 Defaulted Interest<\/u>.<\/p>\n If the Issuer defaults in a payment of interest on the Notes, it shall pay
\nthe defaulted interest in any lawful manner plus, to the extent lawful, interest
\npayable on the defaulted interest to the Persons who are Holders on a subsequent
\nspecial record date, in each case at the rate provided in the Notes and in
\nSection 4.01 hereof. The Issuer shall notify the Trustee in writing of the
\namount of defaulted interest proposed to be paid on each Note and the date of
\nthe proposed payment, and at the same time the Issuer shall deposit with the
\nTrustee an amount of money equal to the aggregate amount proposed to be paid in
\nrespect of such defaulted interest or shall make arrangements satisfactory to
\nthe Trustee for such deposit prior to the date of the proposed payment, such
\nmoney when deposited to be held in trust for the benefit of the Persons entitled
\nto such defaulted interest as provided in this Section 2.12. The Trustee shall
\nfix or cause to be fixed each such special record date and payment date;
\nprovided<\/u> that no such special record date shall be less than 10 days
\nprior to the related payment date for such defaulted interest. The Trustee shall
\npromptly notify the Issuer of such special record date. At least 15 days before
\nthe special record date, the Issuer (or, upon the written request of the Issuer,
\nthe Trustee in the name and at the expense of the Issuer) shall mail or cause to
\nbe mailed, first-class postage prepaid, to each Holder a notice at his or her
\naddress as it appears in the Note Register that states the special record date,
\nthe related payment date and the amount of such interest to be paid.<\/p>\n Subject to the foregoing provisions of this Section 2.12 and for greater
\ncertainty, each Note delivered under this Indenture upon registration of
\ntransfer of or in exchange for or in lieu of any other Note shall carry the
\nrights to interest accrued and unpaid, and to accrue, which were carried by such
\nother Note.<\/p>\n Section 2.13 CUSIP Numbers<\/u>.<\/p>\n The Issuer in issuing the Notes may use CUSIP numbers (if then generally in
\nuse) and, if so, the Trustee shall use CUSIP numbers in notices of redemption as
\na convenience to Holders; provided<\/u> that any such notice may state that no
\nrepresentation is made as to the correctness of such numbers either as printed
\non the Notes or as contained in any notice of redemption and that reliance may
\nbe placed only on the other identification numbers printed on the Notes, and any
\nsuch redemption shall not be affected by any defect in or omission of such
\nnumbers. The Issuer will as promptly as practicable notify the Trustee of any
\nchange in the CUSIP numbers.<\/p>\n -48-<\/p>\n
\nARTICLE 3<\/p>\n REDEMPTION<\/p>\n Section 3.01 Notices to Trustee<\/u>.<\/p>\n If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it
\nshall furnish to the Trustee, at least 5 Business Days before notice of
\nredemption is required to be mailed or caused to be mailed to Holders pursuant
\nto Section 3.03 hereof but not more than 60 days before a redemption date, an
\nOfficer153s Certificate setting forth (i) the paragraph or subparagraph of such
\nNote and\/or Section of this Indenture pursuant to which the redemption shall
\noccur, (ii) the redemption date, (iii) the principal amount of the Notes to be
\nredeemed and (iv) the redemption price.<\/p>\n Section 3.02 Selection of Notes to Be Redeemed or Purchased<\/u>.<\/p>\n If less than all of the Notes are to be redeemed or purchased in an offer to
\npurchase at any time, the Trustee shall select the Notes to be redeemed or
\npurchased (a) if the Notes are listed on any national securities exchange, in
\ncompliance with the requirements of the principal national securities exchange
\non which the Notes are listed, (b) on a pro rata<\/u> basis or (c) to the
\nextent that selection on a pro rata<\/u> basis is not practicable by lot or by
\nsuch other method the Trustee considers fair and appropriate. In the event of
\npartial redemption or purchase by lot, the particular Notes to be redeemed or
\npurchased shall be selected, unless otherwise provided herein, not less than 30
\nnor more than 60 days prior to the redemption date by the Trustee from the
\noutstanding Notes not previously called for redemption or purchase.<\/p>\n The Trustee shall promptly notify the Issuer in writing of the Notes selected
\nfor redemption or purchase and, in the case of any Note selected for partial
\nredemption or purchase, the principal amount thereof to be redeemed or
\npurchased. Notes and portions of Notes selected shall be in amounts of $2,000 or
\nwhole multiples of $1,000 in excess thereof; no Notes of $2,000 or less can be
\nredeemed in part, except that if all of the Notes of a Holder are to be redeemed
\nor purchased, the entire outstanding amount of Notes held by such Holder, even
\nif not a multiple of $1,000, shall be redeemed or purchased. Except as provided
\nin the preceding sentence, provisions of this Indenture that apply to Notes
\ncalled for redemption or purchase also apply to portions of Notes called for
\nredemption or purchase.<\/p>\n Section 3.03 Notice of Redemption<\/u>.<\/p>\n Subject to Section 3.09 hereof, the Issuer shall mail or cause to be mailed
\nby first-class mail notices of redemption at least 30 days but not more than 60
\ndays before the redemption date to each Holder of Notes to be redeemed at such
\nHolder153s registered address or otherwise in accordance with the procedures of
\nDTC, except that redemption notices may be mailed more than 60 days prior to a
\nredemption date if the notice is issued in connection with Article 8 or Article
\n11 hereof. Except as set forth in Section 3.07(d) hereof, notices of redemption
\nmay not be conditional.<\/p>\n The notice shall identify the Notes to be redeemed and shall state:<\/p>\n (a) the redemption date;<\/p>\n (b) the redemption price;<\/p>\n (c) if any Note is to be redeemed in part only, the portion of the principal
\namount of that Note that is to be redeemed and that, after the redemption date
\nupon surrender of such Note, a new Note or Notes in principal amount equal to
\nthe unredeemed portion of the original Note representing the same indebtedness
\nto the extent not redeemed will be issued in the name of the Holder of the Notes
\nupon cancellation of the original Note;<\/p>\n -49-<\/p>\n
\n(d) the name and address of the Paying Agent;<\/p>\n (e) that Notes called for redemption must be surrendered to the Paying Agent
\nto collect the redemption price;<\/p>\n (f) that, unless the Issuer defaults in making such redemption payment,
\ninterest on Notes called for redemption ceases to accrue on and after the
\nredemption date;<\/p>\n (g) the paragraph or subparagraph of the Notes and\/or Section of this
\nIndenture pursuant to which the Notes called for redemption are being redeemed;\n<\/p>\n (h) that no representation is made as to the correctness or accuracy of the
\nCUSIP number, if any, listed in such notice or printed on the Notes; and<\/p>\n (i) if in connection with a redemption pursuant to Section 3.07(c) or 3.07(d)
\nhereof, any condition to such redemption.<\/p>\n At the Issuer153s request, the Trustee shall give the notice of redemption in
\nthe Issuer153s name and at its expense; provided<\/u> that the Issuer shall have
\ndelivered to the Trustee, at least 5 Business Days before notice of redemption
\nis required to be mailed or caused to be mailed to Holders pursuant to this
\nSection 3.03 (unless a shorter notice shall be agreed to by the Trustee), an
\nOfficer153s Certificate requesting that the Trustee give such notice and setting
\nforth the information to be stated in such notice as provided in the preceding
\nparagraph.<\/p>\n Section 3.04 Effect of Notice of Redemption<\/u>.<\/p>\n Once notice of redemption is mailed in accordance with Section 3.03 hereof,
\nNotes called for redemption become irrevocably due and payable on the redemption
\ndate at the redemption price (except as provided for in Section 3.07(c) and
\n3.07(d) hereof). The notice, if mailed in a manner herein provided, shall be
\nconclusively presumed to have been given, whether or not the Holder receives
\nsuch notice. In any case, failure to give such notice by mail or any defect in
\nthe notice to the Holder of any Note designated for redemption in whole or in
\npart shall not affect the validity of the proceedings for the redemption of any
\nother Note. Subject to Section 3.05 hereof, on and after the redemption date,
\ninterest ceases to accrue on Notes or portions of Notes called for redemption.\n<\/p>\n Section 3.05 Deposit of Redemption or Purchase Price<\/u>.<\/p>\n Prior to 10:00 a.m. (New York City time) on the redemption or purchase date,
\nthe Issuer shall deposit with the Trustee or with the Paying Agent money
\nsufficient to pay the redemption or purchase price of and accrued and unpaid
\ninterest (including Additional Interest, if any) on all Notes to be redeemed or
\npurchased on that date. The Trustee or the Paying Agent shall promptly return to
\nthe Issuer any money deposited with the Trustee or the Paying Agent by the
\nIssuer in excess of the amounts necessary to pay the redemption price of, and
\naccrued and unpaid interest on, all Notes to be redeemed or purchased.<\/p>\n -50-<\/p>\n
\nIf the Issuer complies with the provisions of the preceding paragraph, on and
\nafter the redemption or purchase date, interest shall cease to accrue on the
\nNotes or the portions of Notes called for redemption or purchase. If a Note is
\nredeemed or purchased on or after a Record Date but on or prior to the related
\nInterest Payment Date, then any accrued and unpaid interest to the redemption or
\npurchase date shall be paid to the Person in whose name such Note was registered
\nat the close of business on such Record Date. If any Note called for redemption
\nor purchase shall not be so paid upon surrender for redemption or purchase
\nbecause of the failure of the Issuer to comply with the preceding paragraph,
\ninterest shall be paid on the unpaid principal, from the redemption or purchase
\ndate until such principal is paid, and to the extent lawful on any interest
\naccrued to the redemption or purchase date not paid on such unpaid principal, in
\neach case at the rate provided in the Notes and in Section 4.01 hereof.<\/p>\n Section 3.06 Notes Redeemed or Purchased in Part<\/u>.<\/p>\n Upon surrender of a Note that is redeemed or purchased in part, the Issuer
\nshall issue and the Trustee shall authenticate for the Holder at the expense of
\nthe Issuer a new Note equal in principal amount to the unredeemed or unpurchased
\nportion of the Note surrendered representing the same indebtedness to the extent
\nnot redeemed or purchased; provided<\/u> that each new Note will be in a
\nprincipal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
\nIt is understood that, notwithstanding anything in this Indenture to the
\ncontrary, only an Authentication Order and not an Opinion of Counsel or
\nOfficer153s Certificate is required for the Trustee to authenticate such new Note.\n<\/p>\n Section 3.07 Optional Redemption<\/u>.<\/p>\n (a) At any time prior to August 1, 2014, the Issuer may redeem all or a part
\nof the Notes, upon not less than 30 nor more than 60 days153 prior notice mailed
\nby first-class mail to the registered address of each Holder of Notes or
\notherwise in accordance with the procedures of DTC, at a redemption price equal
\nto 100% of the principal amount of the Notes redeemed plus the Applicable
\nPremium as of, and accrued and unpaid interest and Additional Interest, if any,
\nto the date of redemption (the “Redemption Date<\/u>“), subject to the rights
\nof Holders of Notes on the relevant Record Date to receive interest due on the
\nrelevant Interest Payment Date.<\/p>\n (b) On and after August 1, 2014, the Issuer may redeem the Notes, in whole or
\nin part, upon notice as described under Section 3.01 hereto, at the redemption
\nprices (expressed as percentages of principal amount of the Notes to be
\nredeemed) set forth in this Section 3.07(b), plus accrued and unpaid interest
\nthereon and Additional Interest, if any, to the applicable Redemption Date,
\nsubject to the right of Holders of Notes of record on the relevant Record Date
\nto receive interest due on the relevant Interest Payment Date, if redeemed
\nduring the twelve-month period beginning on August 1 of each of the years
\nindicated below:<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Year<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Percentage<\/strong><\/p>\n<\/td>\n| <\/td>\n<\/tr>\n | \n| \n 2014<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 105.125<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n 2015<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 102.563<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n 2016 and thereafter<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 100.000<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (c) Prior to August 1, 2013, the Issuer may, at its option, on one or more
\noccasions, redeem up to 35% of the aggregate principal amount of Notes at a
\nredemption price equal to 110.250% of the aggregate principal amount thereof,
\nplus accrued and unpaid interest thereon and Additional Interest, if any, to the
\napplicable Redemption Date, subject to the right of Holders of Notes of record
\non the relevant Record Date to receive interest due on the relevant Interest
\nPayment Date, with the net cash proceeds of one or more Equity Offerings;
\nprovided<\/u> that at least 50% of the sum of the aggregate principal amount
\nof Notes originally issued under this Indenture and original principal amount of
\nany Additional Notes that are Notes issued under this Indenture after the Issue
\nDate remains outstanding immediately after the occurrence of each such
\nredemption; provided<\/u>, further<\/u>, that each such redemption occurs
\nwithin 90 days of the date of closing of each such Equity Offering.<\/p>\n -51-<\/p>\n
\n(d) Any notice of any redemption may be given prior to the redemption
\nthereof, and any such redemption or notice may, at the Issuer153s discretion, be
\nsubject to one or more conditions precedent, including, but not limited to,
\ncompletion of an Equity Offering or other corporate transaction.<\/p>\n (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to
\nthe provisions of Sections 3.01 through 3.06 hereof.<\/p>\n Section 3.08 Mandatory Redemption<\/u>.<\/p>\n The Issuer shall not be required to make any mandatory redemption or sinking
\nfund payments with respect to the Notes.<\/p>\n Section 3.09 Offers to Repurchase by Application of Excess Proceeds<\/u>.\n<\/p>\n (a) In the event that, pursuant to Section 4.10 hereof, the Issuer shall be
\nrequired to commence an Asset Sale Offer, it shall follow the procedures
\nspecified below.<\/p>\n (b) The Asset Sale Offer shall remain open for a period of 20 Business Days
\nfollowing its commencement and no longer, except to the extent that a longer
\nperiod is required by applicable law (the “Offer Period<\/u>“). No later than
\nfive Business Days after the termination of the Offer Period (the “Purchase
\nDate<\/u>“), the Issuer shall apply all Excess Proceeds (the “Offer
\nAmount<\/u>“) to the purchase of Notes and, if required, Pari Passu Indebtedness
\n(on a pro rata<\/u> basis, if applicable), or, if less than the Offer Amount
\nhas been tendered, all Notes and Pari Passu Indebtedness tendered in response to
\nthe Asset Sale Offer. Payment for any Notes so purchased shall be made in the
\nsame manner as interest payments are made.<\/p>\n (c) If the Purchase Date is on or after a Record Date and on or before the
\nrelated Interest Payment Date, any accrued and unpaid interest and Additional
\nInterest, if any, up to but excluding the Purchase Date, shall be paid to the
\nPerson in whose name a Note is registered at the close of business on such
\nRecord Date, and no additional interest shall be payable to Holders who tender
\nNotes pursuant to the Asset Sale Offer.<\/p>\n (d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, by
\nfirst-class mail, a notice to each of the Holders, with a copy to the Trustee.
\nThe notice shall contain all instructions and materials necessary to enable such
\nHolders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer
\nshall be made to all Holders and holders of Pari Passu Indebtedness. The notice,
\nwhich shall govern the terms of the Asset Sale Offer, shall state:<\/p>\n (i) that the Asset Sale Offer is being made pursuant to this Section 3.09 and
\nSection 4.10 hereof and the length of time the Asset Sale Offer shall remain
\nopen;<\/p>\n (ii) the Offer Amount, the purchase price and the Purchase Date;<\/p>\n (iii) that any Note not tendered or accepted for payment shall continue to
\naccrue interest;<\/p>\n (iv) that, unless the Issuer defaults in making such payment, any Note
\naccepted for payment pursuant to the Asset Sale Offer shall cease to accrue
\ninterest after the Purchase Date;<\/p>\n -52-<\/p>\n
\n(v) that Holders electing to have a Note purchased pursuant to an Asset Sale
\nOffer may elect to have Notes purchased in amounts of $2,000 or whole multiples
\nof $1,000 in excess thereof only;<\/p>\n (vi) that Holders electing to have a Note purchased pursuant to any Asset
\nSale Offer shall be required to surrender the Note, with the form entitled
\n“Option of Holder to Elect Purchase” attached to the Note completed, or transfer
\nby book-entry transfer, to the Issuer, the Depositary, if appointed by the
\nIssuer, or a Paying Agent at the address specified in the notice at least three
\ndays before the Purchase Date;<\/p>\n (vii) that Holders shall be entitled to withdraw their election if the
\nIssuer, the Depositary or the Paying Agent, as the case may be, receives, not
\nlater than the expiration of the Offer Period, a telegram, facsimile
\ntransmission or letter setting forth the name of the Holder, the principal
\namount of the Note the Holder delivered for purchase and a statement that such
\nHolder is withdrawing his election to have such Note purchased;<\/p>\n (viii) that, if the aggregate principal amount of Notes and Pari Passu
\nIndebtedness surrendered by the holders thereof exceeds the Offer Amount, the
\nTrustee shall select the Notes and such Pari Passu Indebtedness to be purchased
\non a pro<\/u> rata<\/u> basis based on the accreted value or principal
\namount of the Notes or such Pari Passu Indebtedness tendered (with such
\nadjustments as may be deemed appropriate by the Trustee so that only Notes in
\ndenominations of $2,000, or integral multiples of $1,000 in excess thereof,
\nshall be purchased); and<\/p>\n (ix) that Holders whose Notes were purchased only in part shall be issued new
\nNotes equal in principal amount to the unpurchased portion of the Notes
\nsurrendered (or transferred by book-entry transfer) representing the same
\nindebtedness to the extent not repurchased.<\/p>\n (e) On or before the Purchase Date, the Issuer shall, to the extent lawful,
\n(1) accept for payment, on a pro<\/u> rata<\/u> basis to the extent
\nnecessary, the Offer Amount of Notes or portions thereof validly tendered
\npursuant to the Asset Sale Offer, or if less than the Offer Amount has been
\ntendered, all Notes tendered and (2) deliver or cause to be delivered to the
\nTrustee the Notes properly accepted together with an Officer153s Certificate
\nstating the aggregate principal amount of Notes or portions thereof so tendered.\n<\/p>\n (f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall
\npromptly mail or deliver to each tendering Holder an amount equal to the
\npurchase price of the Notes properly tendered by such Holder and accepted by the
\nIssuer for purchase, and the Issuer shall promptly issue a new Note, and the
\nTrustee, upon receipt of an Authentication Order, shall authenticate and mail or
\ndeliver (or cause to be transferred by book-entry) such new Note to such Holder
\n(it being understood that, notwithstanding anything in this Indenture to the
\ncontrary, no Opinion of Counsel or Officer153s Certificate is required for the
\nTrustee to authenticate and mail or deliver such new Note) in a principal amount
\nequal to any unpurchased portion of the Note surrendered representing the same
\nindebtedness to the extent not repurchased; provided<\/u>, that each such new
\nNote shall be in a principal amount of $2,000 or an integral multiple of $1,000
\nin excess thereof. Any Note not so accepted shall be promptly mailed or
\ndelivered by the Issuer to the Holder thereof. The Issuer shall publicly
\nannounce the results of the Asset Sale Offer on or as soon as practicable after
\nthe Purchase Date.<\/p>\n Other than as specifically provided in this Section 3.09 or Section 4.10
\nhereof, any purchase pursuant to this Section 3.09 shall be made pursuant to the
\napplicable provisions of Sections 3.01 through 3.06 hereof.<\/p>\n -53-<\/p>\n
\nARTICLE 4<\/p>\n COVENANTS<\/p>\n Section 4.01 Payment of Notes<\/u>.<\/p>\n The Issuer shall pay or cause to be paid the principal of, premium, if any,
\nAdditional Interest, if any, and interest on the Notes on the dates and in the
\nmanner provided in the Notes. Principal, premium, if any, Additional Interest,
\nif any, and interest shall be considered paid on the date due if the Paying
\nAgent, if other than the Issuer or a Subsidiary, holds as of noon Eastern Time
\non the due date money deposited by the Issuer in immediately available funds and
\ndesignated for and sufficient to pay all principal, premium, if any, and
\ninterest then due.<\/p>\n The Issuer shall pay all Additional Interest, if any, in the same manner on
\nthe dates and in the amounts set forth in the Registration Rights Agreement.\n<\/p>\n The Issuer shall pay interest (including post-petition interest in any
\nproceeding under any Bankruptcy Law) on overdue principal at the rate equal to
\nthe then applicable interest rate on the Notes to the extent lawful; it shall
\npay interest (including post-petition interest in any proceeding under any
\nBankruptcy Law) on overdue installments of interest and Additional Interest
\n(without regard to any applicable grace period) at the same rate to the extent
\nlawful.<\/p>\n Section 4.02 Maintenance of Office or Agency<\/u>.<\/p>\n The Issuer shall maintain an office or agency (which may be an office of the
\nTrustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
\nmay be surrendered for registration of transfer or for exchange and where
\nnotices and demands to or upon the Issuer in respect of the Notes and this
\nIndenture may be served. The Issuer shall give prompt written notice to the
\nTrustee of the location, and any change in the location, of such office or
\nagency. If at any time the Issuer shall fail to maintain any such required
\noffice or agency or shall fail to furnish the Trustee with the address thereof,
\nsuch presentations, surrenders, notices and demands may be made or served at the
\nCorporate Trust Office of the Trustee.<\/p>\n The Issuer may also from time to time designate one or more other offices or
\nagencies where the Notes may be presented or surrendered for any or all such
\npurposes and may from time to time rescind such designations; provided<\/u>
\nthat no such designation or rescission shall in any manner relieve the Issuer of
\nits obligation to maintain an office or agency for such purposes. The Issuer
\nshall give prompt written notice to the Trustee of any such designation or
\nrescission and of any change in the location of any such other office or agency.\n<\/p>\n The Issuer hereby designates the Corporate Trust Office of the Trustee as one
\nsuch office or agency of the Issuer in accordance with Section 2.03 hereof.<\/p>\n Section 4.03 Reports and Other Information<\/u>.<\/p>\n (a) Notwithstanding that the Issuer may not be subject to the reporting
\nrequirements of Sections 13 or 15(d) of the Exchange Act or otherwise report on
\nan annual and quarterly basis on forms provided for such annual and quarterly
\nreporting pursuant to rules and regulations promulgated by the SEC, the Issuer
\nshall file with the SEC (and make available to the Trustee and Holders of the
\nNotes (without exhibits), without cost to any Holder, within 15 days after the
\nIssuer files them with the SEC) from and after the Issue Date,<\/p>\n -54-<\/p>\n
\n(1) within 90 days (or any other time period then in effect under the rules
\nand regulations of the Exchange Act with respect to the filing of a Form 10-K by
\na non-accelerated filer) after the end of each fiscal year, annual reports on
\nForm 10-K, or any successor or comparable form, containing the information
\nrequired to be contained therein, or required in such successor or comparable
\nform;<\/p>\n (2) within 45 days after the end of each of the first three fiscal quarters
\nof each fiscal year, reports on Form 10-Q containing all quarterly information
\nthat would be required to be contained in Form 10-Q, or any successor or
\ncomparable form;<\/p>\n (3) promptly from time to time after the occurrence of an event required to
\nbe therein reported, such other reports on Form 8-K, or any successor or
\ncomparable form; and<\/p>\n (4) any other information, documents and other reports that the Issuer would
\nbe required to file with the SEC if it were subject to Section 13 or 15(d) of
\nthe Exchange Act;<\/p>\n in each case, in a manner that complies in all material respects with the
\nrequirements specified in such form; provided<\/u> that the Issuer shall not
\nbe so obligated to file such reports with the SEC if the SEC does not permit
\nsuch filing, in which event the Issuer shall make available such information to
\nprospective purchasers of Notes, which obligations may be satisfied by posting
\nsuch reports on the website of the Issuer, in addition to providing such
\ninformation to the Trustee and the Holders of the Notes, in each case within 15
\ndays after the time the Issuer would be required to file such information with
\nthe SEC, if it were subject to Section 13 or 15(d) of the Exchange Act. In
\naddition, to the extent not satisfied by the foregoing, the Issuer shall, for so
\nlong as any Notes are outstanding, furnish to Holders and to securities analysts
\nand prospective investors, upon their request, the information required to be
\ndelivered pursuant to Rule 144A(d)(4) under the Securities Act.<\/p>\n (b) In the event that any direct or indirect parent company of the Issuer
\nbecomes a guarantor of the Notes (which shall be permitted, subject to
\ncompliance with the terms of this Indenture, at any time, at the Issuer153s sole
\ndiscretion), the Issuer may satisfy its obligations under this Section 4.03 with
\nrespect to financial information relating to the Issuer by furnishing financial
\ninformation relating to such parent; provided<\/u> that the same is
\naccompanied by consolidating information that explains in reasonable detail the
\ndifferences between the information relating to such parent, on the one hand,
\nand the information relating to the Issuer and its Restricted Subsidiaries on a
\nstand-alone basis, on the other hand.<\/p>\n (c) Notwithstanding the foregoing, the requirements of this Section 4.03
\nshall be deemed satisfied prior to the commencement of the Exchange Offer or the
\neffectiveness of the Shelf Registration Statement by the filing with the SEC of
\nthe Exchange Offer Registration Statement or Shelf Registration Statement, and
\nany amendments thereto, with such financial information that satisfies
\nRegulation S-X of the Securities Act.<\/p>\n Section 4.04 Compliance Certificate<\/u>.<\/p>\n (a) The Issuer and each Guarantor (to the extent that such Guarantor is so
\nrequired under the Trust Indenture Act) shall deliver to the Trustee, within 90
\ndays after the end of each fiscal year ending after the Issue Date, a
\ncertificate from the principal executive officer, principal financial officer or
\nprincipal accounting officer stating that a review of the activities of the
\nIssuer and its Restricted Subsidiaries during the preceding fiscal year has been
\nmade under the supervision of the signing Officer with a view to determining
\nwhether the Issuer has kept, observed, performed and fulfilled its obligations
\nunder this Indenture, and further stating, as to such Officer signing such
\ncertificate, that to the best of his or her knowledge the Issuer has kept,
\nobserved, performed and fulfilled each and every condition and covenant
\ncontained in this Indenture and is not in default in the performance or
\nobservance of any of the terms, provisions, covenants and conditions of this
\nIndenture (or, if a Default shall have occurred, describing all such Defaults of
\nwhich he or she may have knowledge and what action the Issuer is taking or
\nproposes to take with respect thereto).<\/p>\n -55-<\/p>\n
\n(b) When any Default has occurred and is continuing under this Indenture, or
\nif the Trustee or the holder of any other evidence of Indebtedness of the Issuer
\nor any Subsidiary gives any notice or takes any other action with respect to a
\nclaimed Default, the Issuer shall promptly (which shall be no more than five (5)
\nBusiness Days) deliver to the Trustee by registered or certified mail or by
\nfacsimile transmission an Officer153s Certificate specifying such event and what
\naction the Issuer proposes to take with respect thereto.<\/p>\n Section 4.05 Taxes<\/u>.<\/p>\n The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to
\npay, prior to delinquency, all material taxes, assessments, and governmental
\nlevies except such as are contested in good faith and by appropriate
\nnegotiations or proceedings or where the failure to effect such payment is not
\nadverse in any material respect to the Holders of the Notes.<\/p>\n Section 4.06 Stay, Extension and Usury Laws<\/u>.<\/p>\n The Issuer and each of the Guarantors covenant (to the extent that they may
\nlawfully do so) that they shall not at any time insist upon, plead, or in any
\nmanner whatsoever claim or take the benefit or advantage of, any stay, extension
\nor usury law wherever enacted, now or at any time hereafter in force, that may
\naffect the covenants or the performance of this Indenture; and the Issuer and
\neach of the Guarantors (to the extent that they may lawfully do so) hereby
\nexpressly waive all benefit or advantage of any such law, and covenant that they
\nshall not, by resort to any such law, hinder, delay or impede the execution of
\nany power herein granted to the Trustee, but shall suffer and permit the
\nexecution of every such power as though no such law has been enacted.<\/p>\n Section 4.07 Limitation on Restricted Payments<\/u>.<\/p>\n (a) The Issuer shall not, and shall not permit any of its Restricted
\nSubsidiaries to, directly or indirectly:<\/p>\n (I) declare or pay any dividend or make any payment or distribution on
\naccount of the Issuer153s, or any of its Restricted Subsidiaries153, Equity
\nInterests, including any dividend or distribution payable in connection with any
\nmerger or consolidation other than:<\/p>\n (A) dividends or distributions by the Issuer payable solely in Equity
\nInterests (other than Disqualified Stock) of the Issuer; or<\/p>\n (B) dividends or distributions by a Restricted Subsidiary so long as, in the
\ncase of any dividend or distribution payable on or in respect of any class or
\nseries of securities issued by a Restricted Subsidiary other than a Wholly-Owned
\nSubsidiary, the Issuer or a Restricted Subsidiary receives at least its pro
\nrata<\/u> share of such dividend or distribution in accordance with its Equity
\nInterests in such class or series of securities;<\/p>\n (II) purchase, redeem, defease or otherwise acquire or retire for value any
\nEquity Interests of the Issuer or any direct or indirect parent of the Issuer,
\nincluding in connection with any merger or consolidation;<\/p>\n -56-<\/p>\n
\n(III) make any principal payment on, or redeem, repurchase, defease or
\notherwise acquire or retire for value in each case, prior to any scheduled
\nrepayment, sinking fund payment or maturity, any Subordinated Indebtedness,
\nother than:<\/p>\n (A) Indebtedness permitted under clauses (7) and (8) of Section 4.09(b)
\nhereof; or<\/p>\n (B) the purchase, repurchase or other acquisition of Subordinated
\nIndebtedness purchased in anticipation of satisfying a sinking fund obligation,
\nprincipal installment or final maturity, in each case due within one year of the
\ndate of purchase, repurchase or acquisition; or<\/p>\n (IV) make any Restricted Investment<\/p>\n (all such payments and other actions set forth in clauses (I) through (IV)
\n(other than any exception thereto) above being collectively referred to as
\n“Restricted Payments<\/u>“), unless, at the time of such Restricted Payment:\n<\/p>\n (1) no Default shall have occurred and be continuing or would occur as a
\nconsequence thereof;<\/p>\n (2) immediately after giving effect to such transaction on a pro<\/u>
\nforma<\/u> basis, the Issuer could incur $1.00 of additional Indebtedness
\nunder Section 4.09(a) hereof; and<\/p>\n (3) such Restricted Payment, together with the aggregate amount of all other
\nRestricted Payments made by the Issuer and its Restricted Subsidiaries after the
\nIssue Date (including Restricted Payments permitted by clauses (1), (2) (with
\nrespect to the payment of dividends on Refunding Capital Stock pursuant to
\nclause (b) thereof only), (6)(c), (9) and (14) of Section 4.07(b) hereof, but
\nexcluding all other Restricted Payments permitted by Section 4.07(b) hereof), is
\nless than the sum of (without duplication):<\/p>\n (a) 50% of the Consolidated Net Income of the Issuer for the period (taken as
\none accounting period) beginning on the first day of the first full fiscal
\nquarter commencing after the Issue Date to the end of the Issuer153s most recently
\nended fiscal quarter for which internal financial statements are available at
\nthe time of such Restricted Payment, or, in the case such Consolidated Net
\nIncome for such period is a deficit, minus 100% of such deficit; plus<\/u>\n<\/p>\n (b) 100% of the aggregate net cash proceeds and the fair market value, as
\ndetermined in good faith by the board of directors of the Issuer, of marketable
\nsecurities or other property received by the Issuer since immediately after the
\nIssue Date (other than net cash proceeds to the extent such net cash proceeds
\nhave been used to incur Indebtedness, Disqualified Stock or Preferred Stock
\npursuant to clause (12)(a) of Section 4.09(b) hereof) from the issue or sale of:\n<\/p>\n -57-<\/p>\n
\n(i)(A) Equity Interests of the Issuer, including Treasury Capital Stock, but
\nexcluding cash proceeds and the fair market value, as determined in good faith
\nby the board of directors of the Issuer, of marketable securities or other
\nproperty received from the sale of:<\/p>\n (x) Equity Interests to members of management, directors or consultants of
\nthe Issuer, any direct or indirect parent company of the Issuer and the Issuer153s
\nSubsidiaries after the Issue Date to the extent such amounts have been applied
\nto Restricted Payments made in accordance with clause (4) of Section 4.07(b)
\nhereof; and<\/p>\n (y) Designated Preferred Stock,<\/p>\n and (B) to the extent such net cash proceeds are actually contributed to the
\nIssuer, Equity Interests of the Issuer153s direct or indirect parent companies
\n(excluding contributions of the proceeds from the sale of Designated Preferred
\nStock of such companies or contributions to the extent such amounts have been
\napplied to Restricted Payments made in accordance with clause (4) of Section
\n4.07(b) hereof); or<\/p>\n (ii) debt securities of the Issuer that have been converted into or exchanged
\nfor such Equity Interests of the Issuer;<\/p>\n provided<\/u>, however<\/u>, that this clause (b) shall not include the
\nproceeds from (W) Refunding Capital Stock, (X) Equity Interests or convertible
\ndebt securities of the Issuer sold to a Restricted Subsidiary, as the case may
\nbe, (Y) Disqualified Stock or debt securities that have been converted into
\nDisqualified Stock or (Z) Excluded Contributions; plus<\/u><\/p>\n (c) 100% of the aggregate amount of cash and the fair market value, as
\ndetermined in good faith by the board of directors of the Issuer, of marketable
\nsecurities or other property contributed to the capital of the Issuer following
\nthe Issue Date (other than net cash proceeds to the extent such net cash
\nproceeds (i) have been used to incur Indebtedness, Disqualified Stock or
\nPreferred Stock pursuant to clause (12)(a) of Section 4.09(b) hereof, (ii) are
\ncontributed by a Restricted Subsidiary or (iii) constitute Excluded
\nContributions); plus<\/u><\/p>\n (d) 100% of the aggregate amount received in cash and the fair market value,
\nas determined in good faith by the board of directors of the Issuer, of
\nmarketable securities or other property received by means of:<\/p>\n (i) the sale or other disposition (other than to the Issuer or a Restricted
\nSubsidiary) of Restricted Investments made by the Issuer or its Restricted
\nSubsidiaries and repurchases and redemptions of such Restricted Investments from
\nthe Issuer or its Restricted Subsidiaries and repayments of loans or advances,
\nand releases of guarantees, which constitute Restricted Investments by the
\nIssuer or its Restricted Subsidiaries, in each case after the Issue Date; or\n<\/p>\n (ii) the sale (other than to the Issuer or a Restricted Subsidiary) of the
\nstock of an Unrestricted Subsidiary or a distribution from an Unrestricted
\nSubsidiary (other than in each case to the extent the Investment in such
\nUnrestricted Subsidiary constituted a Permitted Investment) or a dividend from
\nan Unrestricted Subsidiary after the Issue Date; plus<\/u><\/p>\n (e) in the case of the redesignation of an Unrestricted Subsidiary as a
\nRestricted Subsidiary after the Issue Date, the fair market value of the
\nInvestment in such Unrestricted Subsidiary, as determined by the board of
\ndirectors of the Issuer in good faith or if such fair market value exceeds $40.0
\nmillion, in writing by an Independent Financial Advisor, at the time of the
\nredesignation of such Unrestricted Subsidiary as a Restricted Subsidiary other
\nthan to the extent the Investment in such Unrestricted Subsidiary constituted a
\nPermitted Investment.<\/p>\n -58-<\/p>\n
\n(b) The foregoing provisions of Section 4.07(a) hereof shall not prohibit:\n<\/p>\n (1) the payment of any dividend within 60 days after the date of declaration
\nthereof, if at the date of declaration such payment would have complied with the
\nprovisions of this Indenture;<\/p>\n (2)(a) the redemption, repurchase, retirement or other acquisition of any
\nEquity Interests (“Treasury Capital Stock<\/u>“) or Subordinated Indebtedness
\nof the Issuer or any Equity Interests of any direct or indirect parent company
\nof the Issuer, in exchange for, or out of the proceeds of the substantially
\nconcurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of
\nthe Issuer or any direct or indirect parent company of the Issuer to the extent
\ncontributed to the Issuer (in each case, other than any Disqualified Stock)
\n(“Refunding Capital Stock<\/u>“) and (b) if immediately prior to the
\nretirement of Treasury Capital Stock, the declaration and payment of dividends
\nthereon was permitted under clause (6) of this Section 4.07(b), the declaration
\nand payment of dividends on the Refunding Capital Stock (other than Refunding
\nCapital Stock the proceeds of which were used to redeem, repurchase, retire or
\notherwise acquire any Equity Interests of any direct or indirect parent company
\nof the Issuer) in an aggregate amount per year no greater than the aggregate
\namount of dividends per annum that were declarable and payable on such Treasury
\nCapital Stock immediately prior to such retirement;<\/p>\n (3) the redemption, repurchase or other acquisition or retirement for value
\nof Subordinated Indebtedness of the Issuer or a Guarantor made by exchange for,
\nor out of the proceeds of the substantially concurrent sale of, new Indebtedness
\nof the Issuer or a Guarantor, as the case may be, which is incurred in
\ncompliance with Section 4.09 hereof so long as:<\/p>\n (a) the principal amount (or accreted value) of such new Indebtedness does
\nnot exceed the principal amount of (or accreted value, if applicable), plus any
\naccrued and unpaid interest on, the Subordinated Indebtedness being so redeemed,
\nrepurchased, acquired or retired for value, plus the amount of any reasonable
\npremium (including reasonable tender premiums), defeasance costs and any
\nreasonable fees and expenses incurred in connection with the issuance of such
\nnew Indebtedness;<\/p>\n (b) such new Indebtedness is subordinated to the Notes or the applicable
\nGuarantee at least to the same extent as such Subordinated Indebtedness so
\npurchased, exchanged, redeemed, repurchased, acquired or retired for value;<\/p>\n (c) such new Indebtedness has a final scheduled maturity date equal to or
\nlater than the final scheduled maturity date of the Subordinated Indebtedness
\nbeing so redeemed, repurchased, acquired or retired; and<\/p>\n (d) such new Indebtedness has a Weighted Average Life to Maturity equal to or
\ngreater than the remaining Weighted Average Life to Maturity of the Subordinated
\nIndebtedness being so redeemed, repurchased, acquired or retired;<\/p>\n -59-<\/p>\n
\n(4) a Restricted Payment to pay for the repurchase, retirement or other
\nacquisition or retirement for value of Equity Interests (other than Disqualified
\nStock) of the Issuer or any of its direct or indirect parent companies held by
\nany future, present or former employee, director or consultant of the Issuer,
\nany of its Subsidiaries or any of its direct or indirect parent companies
\npursuant to any management equity plan or stock option plan or any other
\nmanagement or employee benefit plan or agreement, including any Equity Interests
\nrolled over by management of the Issuer in connection with the Transaction;
\nprovided<\/u>, however<\/u>, that the aggregate Restricted Payments made
\nunder this clause (4) do not exceed in any calendar year $25.0 million (with
\nunused amounts in any calendar year being carried over to succeeding calendar
\nyears subject to a maximum (without giving effect to the following proviso) of
\n$50.0 million in any calendar year); provided<\/u> further<\/u> that such
\namount in any calendar year may be increased by an amount not to exceed:<\/p>\n (a) the cash proceeds from the sale of Equity Interests (other than
\nDisqualified Stock) of the Issuer and, to the extent contributed to the Issuer,
\nEquity Interests of any of the Issuer153s direct or indirect parent companies, in
\neach case to members of management, directors or consultants of the Issuer, any
\nof its Subsidiaries or any of its direct or indirect parent companies that
\noccurs after the Issue Date, to the extent the cash proceeds from the sale of
\nsuch Equity Interests have not otherwise been applied to the payment of
\nRestricted Payments by virtue of clause (3) of Section 4.07(a); plus<\/u><\/p>\n (b) the cash proceeds of key man life insurance policies received by the
\nIssuer or its Restricted Subsidiaries after the Issue Date; less<\/u><\/p>\n (c) the amount of any Restricted Payments previously made with the cash
\nproceeds described in clauses (a) and (b) of this clause (4);<\/p>\n and provided further<\/u> that cancellation of Indebtedness owing to the
\nIssuer or any Restricted Subsidiary from members of management of the Issuer,
\nany of the Issuer153s direct or indirect parent companies or any of the Issuer153s
\nRestricted Subsidiaries in connection with a repurchase of Equity Interests of
\nthe Issuer or any of its direct or indirect parent companies will not be deemed
\nto constitute a Restricted Payment for purposes of this Section 4.07 or any
\nother provision of this Indenture;<\/p>\n (5) the declaration and payment of dividends to holders of any class or
\nseries of Disqualified Stock of the Issuer or any of its Restricted Subsidiaries
\nor any class or series of Preferred Stock of any Restricted Subsidiary, in each
\ncase issued in accordance with Section 4.09 hereof to the extent such dividends
\nare included in the definition of “Fixed Charges”;<\/p>\n (6)(a) the declaration and payment of dividends to holders of any class or
\nseries of Designated Preferred Stock (other than Disqualified Stock) issued by
\nthe Issuer after the Issue Date;<\/p>\n (b) the declaration and payment of dividends to a direct or indirect parent
\ncompany of the Issuer, the proceeds of which will be used to fund the payment of
\ndividends to holders of any class or series of Designated Preferred Stock (other
\nthan Disqualified Stock) of such parent corporation issued after the Issue Date,
\nprovided<\/u> that the amount of dividends paid pursuant to this clause (b)
\nshall not exceed the aggregate amount of cash actually contributed to the Issuer
\nfrom the sale of such Designated Preferred Stock; or<\/p>\n (c) the declaration and payment of dividends on Refunding Capital Stock that
\nis Preferred Stock in excess of the dividends declarable and payable thereon
\npursuant to clause (2) of this Section 4.07(b);<\/p>\n provided<\/u>, however<\/u>, in the case of each of (a) and (c) of this
\nclause (6), that for the most recently ended four full fiscal quarters for which
\ninternal financial statements are available immediately preceding the date of
\nissuance of such Designated Preferred Stock or the declaration of such dividends
\non Refunding Capital Stock that is Preferred Stock, after giving effect to such
\nissuance or declaration on a pro forma<\/u> basis, the Issuer and its
\nRestricted Subsidiaries on a consolidated basis would have had a Fixed Charge
\nCoverage Ratio of at least 2.00 to 1.00;<\/p>\n -60-<\/p>\n
\n(7) [Reserved];<\/p>\n (8) repurchases of Equity Interests deemed to occur upon exercise of stock
\noptions or warrants if such Equity Interests represent a portion of the exercise
\nprice of such options or warrants;<\/p>\n (9) the declaration and payment of dividends on the Issuer153s common stock (or
\nthe payment of dividends to any direct or indirect parent entity to fund a
\npayment of dividends on such entity153s common stock), following consummation of
\nthe first public offering of the Issuer153s common stock or the common stock of
\nany of its direct or indirect parent companies after the Issue Date, of up to 6%
\nper annum of the net cash proceeds received by or contributed to the Issuer in
\nor from any such public offering, other than public offerings with respect to
\nthe Issuer153s common stock registered on Form S-8 and other than any public sale
\nconstituting an Excluded Contribution;<\/p>\n (10) Restricted Payments that are made with Excluded Contributions;<\/p>\n (11) other Restricted Payments in an aggregate amount taken together with all
\nother Restricted Payments made pursuant to this clause (11) not to exceed $75.0
\nmillion at the time made;<\/p>\n (12) distributions or payments of Receivables Fees;<\/p>\n (13) any Restricted Payment made as part of the Transaction and the fees and
\nexpenses related thereto or used to fund amounts owed to Affiliates, in each
\ncase to the extent permitted by Section 4.11 hereof;<\/p>\n (14) the repurchase, redemption or other acquisition or retirement for value
\nof any Subordinated Indebtedness in accordance with the provisions similar to
\nthose described under Section 4.10 and Section 4.14 hereof; provided<\/u>
\nthat all Notes tendered by Holders in connection with a Change of Control Offer
\nor Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired
\nfor value;<\/p>\n (15) the declaration and payment of dividends by the Issuer to, or the making
\nof loans to, any direct or indirect parent in amounts required for any direct or
\nindirect parent companies to pay, in each case without duplication,<\/p>\n (a) franchise and excise taxes and other fees, taxes and expenses required to
\nmaintain their corporate existence;<\/p>\n (b) foreign, federal, state and local income taxes, to the extent such income
\ntaxes are attributable to the income of the Issuer and its Restricted
\nSubsidiaries and, to the extent of the amount actually received from its
\nUnrestricted Subsidiaries, in amounts required to pay such taxes to the extent
\nattributable to the income of such Unrestricted Subsidiaries; provided<\/u>
\nthat in each case the amount of such payments in any fiscal year does not exceed
\nthe amount that the Issuer and its Restricted Subsidiaries would be required to
\npay in respect of federal, state and local taxes for such fiscal year were the
\nIssuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the
\nextent described above) to pay such taxes separately from any such parent
\nentity;<\/p>\n -61-<\/p>\n
\n(c) customary salary, bonus and other benefits payable to officers and
\nemployees of any direct or indirect parent company of the Issuer to the extent
\nsuch salaries, bonuses and other benefits are attributable to the ownership or
\noperation of the Issuer and its Restricted Subsidiaries;<\/p>\n (d) general corporate operating and overhead costs and expenses of any direct
\nor indirect parent company of the Issuer to the extent such costs and expenses
\nare attributable to the ownership or operation of the Issuer and its Restricted
\nSubsidiaries; and<\/p>\n (e) fees and expenses other than to Affiliates of the Issuer related to any
\nunsuccessful equity or debt offering of such parent entity; and<\/p>\n (16) the distribution, by dividend or otherwise, of shares of Capital Stock
\nof, or Indebtedness owed to the Issuer or a Restricted Subsidiary by
\nUnrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary
\nassets of which are cash and\/or Cash Equivalents);<\/p>\n provided<\/u>, however<\/u>, that at the time of, and after giving effect
\nto, any Restricted Payment permitted under clauses (11) and (16) of this Section
\n4.07(b), no Default shall have occurred and be continuing or would occur as a
\nconsequence thereof.<\/p>\n (c) The Issuer shall not permit any Unrestricted Subsidiary to become a
\nRestricted Subsidiary except pursuant to the last sentence of the definition of
\n“Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary
\nas an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its
\nRestricted Subsidiaries (except to the extent repaid) in the Subsidiary so
\ndesignated shall be deemed to be Restricted Payments in an amount determined as
\nset forth in the last sentence of the definition of “Investment.” Such
\ndesignation shall be permitted only if a Restricted Payment in such amount would
\nbe permitted at such time, whether pursuant to Section 4.07(a) hereof or under
\nclause (10), (11) or (16) of Section 4.07(b) hereof, or pursuant to the
\ndefinition of “Permitted Investments,” and if such Subsidiary otherwise meets
\nthe definition of an Unrestricted Subsidiary.<\/p>\n Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
\nSubsidiaries<\/u>.<\/p>\n (a) The Issuer shall not, and shall not permit any of its Restricted
\nSubsidiaries that are not Guarantors to, directly or indirectly, create or
\notherwise cause or suffer to exist or become effective any consensual
\nencumbrance or consensual restriction on the ability of any such Restricted
\nSubsidiary to:<\/p>\n (1)(A) pay dividends or make any other distributions to the Issuer or any of
\nits Restricted Subsidiaries on its Capital Stock or with respect to any other
\ninterest or participation in, or measured by, its profits, or<\/p>\n (B) pay any Indebtedness owed to the Issuer or any of its Restricted
\nSubsidiaries;<\/p>\n (2) make loans or advances to the Issuer or any of its Restricted
\nSubsidiaries; or<\/p>\n -62-<\/p>\n
\n(3) sell, lease or transfer any of its properties or assets to the Issuer or
\nany of its Restricted Subsidiaries.<\/p>\n (b) The restrictions in Section 4.08(a) hereof shall not apply to
\nencumbrances or restrictions existing under or by reason of:<\/p>\n (1) contractual encumbrances or restrictions in effect on the Issue Date,
\nincluding pursuant to the Senior Credit Facilities and the related documentation
\nand related Hedging Obligations;<\/p>\n (2) this Indenture and the Notes;<\/p>\n (3) purchase money obligations for property acquired in the ordinary course
\nof business and Capitalized Lease Obligations that impose restrictions of the
\nnature discussed in clause (3) of Section 4.08(a) hereof on the property so
\nacquired;<\/p>\n (4) applicable law or any applicable rule, regulation or order;<\/p>\n (5) any agreement or other instrument of a Person acquired by the Issuer or
\nany Restricted Subsidiary in existence at the time of such acquisition or at the
\ntime it merges with or into the Issuer or any Restricted Subsidiary or assumed
\nin connection with the acquisition of assets from such Person (but, in each
\ncase, not created in contemplation thereof), which encumbrance or restriction is
\nnot applicable to any Person, or the properties or assets of any Person, other
\nthan the Person and its Subsidiaries, or the property or assets of the Person
\nand its Subsidiaries, so acquired;<\/p>\n (6) contracts for the sale of assets, including customary restrictions with
\nrespect to a Subsidiary of the Issuer pursuant to an agreement that has been
\nentered into for the sale or disposition of all or substantially all of the
\nCapital Stock or assets of such Subsidiary;<\/p>\n (7) Secured Indebtedness otherwise permitted to be incurred pursuant to
\nSection 4.09 hereof and Section 4.12 hereof that limit the right of the debtor
\nto dispose of the assets securing such Indebtedness;<\/p>\n (8) restrictions on cash or other deposits or net worth imposed by customers
\nunder contracts entered into in the ordinary course of business;<\/p>\n (9) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign
\nSubsidiaries permitted to be incurred subsequent to the Issue Date pursuant to
\nthe provisions of Section 4.09 hereof;<\/p>\n (10) customary provisions in joint venture agreements or arrangements and
\nother similar agreements relating solely to such joint venture;<\/p>\n (11) customary provisions contained in leases or licenses of intellectual
\nproperty and other agreements, in each case entered into in the ordinary course
\nof business;<\/p>\n (12) any encumbrances or restrictions of the type referred to in clauses (1),
\n(2) and (3) of Section 4.08(a) hereof imposed by any amendments, modifications,
\nrestatements, renewals, increases, supplements, refundings, replacements or
\nrefinancings of the contracts, instruments or obligations referred to in clauses
\n(1) through (11) of this Section 4.08(b); provided<\/u> that such amendments,
\nmodifications, restatements, renewals, increases, supplements, refundings,
\nreplacements or refinancings are, in the good faith judgment of the Issuer, no
\nmore restrictive with respect to such encumbrance and other restrictions taken
\nas a whole than those prior to such amendment, modification, restatement,
\nrenewal, increase, supplement, refunding, replacement or refinancing; and<\/p>\n -63-<\/p>\n
\n(13) restrictions created in connection with any Receivables Facility that,
\nin the good faith determination of the Issuer, are necessary or advisable to
\neffect such Receivables Facility.<\/p>\n Section 4.09 Limitation on Incurrence of Indebtedness and Issuance of
\nDisqualified Stock and Preferred Stock<\/u>.<\/p>\n (a) The Issuer shall not, and shall not permit any of its Restricted
\nSubsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
\nor otherwise become directly or indirectly liable, contingently or otherwise
\n(collectively, “incur<\/u>” and collectively, an “incurrence<\/u>“) with
\nrespect to any Indebtedness (including Acquired Indebtedness) and the Issuer
\nshall not issue any shares of Disqualified Stock and shall not permit any
\nRestricted Subsidiary to issue any shares of Disqualified Stock or Preferred
\nStock; provided<\/u>, however<\/u>, that the Issuer may incur Indebtedness
\n(including Acquired Indebtedness) or issue shares of Disqualified Stock, and any
\nof its Restricted Subsidiaries may incur Indebtedness (including Acquired
\nIndebtedness), issue shares of Disqualified Stock and issue shares of Preferred
\nStock, if the Fixed Charge Coverage Ratio on a consolidated basis for the Issuer
\nand its Restricted Subsidiaries153 most recently ended four fiscal quarters for
\nwhich internal financial statements are available immediately preceding the date
\non which such additional Indebtedness is incurred or such Disqualified Stock or
\nPreferred Stock is issued would have been at least 2.00 to 1.00, determined on a
\npro forma<\/u> basis (including a pro<\/u> forma<\/u> application of the
\nnet proceeds therefrom), as if the additional Indebtedness had been incurred, or
\nthe Disqualified Stock or Preferred Stock had been issued, as the case may be,
\nand the application of proceeds therefrom had occurred, at the beginning of such
\nfour-quarter period; provided<\/u>, further<\/u>, that Restricted
\nSubsidiaries that are not Guarantors may not incur Indebtedness or Disqualified
\nStock or Preferred Stock if, after giving pro forma <\/u>effect to such
\nincurrence or issuance (including a pro<\/u> forma<\/u> application of the
\nnet proceeds therefrom), more than an aggregate of $225.0 million of
\nIndebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries
\nthat are not Guarantors would be outstanding pursuant to this Section 4.09(a)
\nand clauses (12)(b) and (14) of Section 4.09(b) hereof at such time.<\/p>\n (b) The provisions of Section 4.09(a) hereof shall not apply to:<\/p>\n (1) the incurrence of Indebtedness under Credit Facilities by the Issuer or
\nany of its Restricted Subsidiaries and the issuance and creation of letters of
\ncredit and bankers153 acceptances thereunder (with letters of credit and bankers153
\nacceptances being deemed to have a principal amount equal to the face amount
\nthereof), up to an aggregate principal amount of $1,760.0 million outstanding at
\nany one time, less the aggregate of mandatory principal payments actually made
\nby the borrower thereunder in respect of Indebtedness thereunder with Net
\nProceeds from an Asset Sale or series of related Asset Sales that constitutes
\nthe sale, transfer, conveyance or other disposition of all or substantially all
\nof a segment (as defined under GAAP) of the Issuer (other than any segment
\npredominantly composed of assets acquired by the Issuer or its Restricted
\nSubsidiaries subsequent to the Issue Date);<\/p>\n (2) the incurrence by the Issuer and any Guarantor of Indebtedness
\nrepresented by the Notes (including any Guarantee) (other than any Additional
\nNotes);<\/p>\n (3) Indebtedness of the Issuer and its Restricted Subsidiaries in existence
\non the Issue Date (other than Indebtedness described in clauses (1), (2) and (4)
\nof this Section 4.09(b));<\/p>\n -64-<\/p>\n
\n(4) Indebtedness (including Capitalized Lease Obligations), Disqualified
\nStock and Preferred Stock incurred by the Issuer or any of its Restricted
\nSubsidiaries, to finance the purchase, lease or improvement of property (real or
\npersonal) or equipment (other than software) that is used or useful in a Similar
\nBusiness, whether through the direct purchase of assets or the Capital Stock of
\nany Person owning such assets; provided<\/u> that the aggregate amount of
\nIndebtedness, Disqualified Stock and Preferred Stock incurred pursuant to this
\nclause (4), when aggregated with the outstanding amount of Indebtedness under
\nclause (13) incurred to refinance Indebtedness initially incurred in reliance on
\nthis clause (4), does not exceed the greater of 2.0% of the Issuer153s Total
\nAssets and $75.0 million at any one time outstanding so long as such
\nIndebtedness exists at the date of such purchase, lease or improvement or is
\ncreated within 270 days thereafter;<\/p>\n (5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries
\nconstituting reimbursement obligations with respect to letters of credit issued
\nin the ordinary course of business, including letters of credit in respect of
\nworkers153 compensation claims, or other Indebtedness with respect to
\nreimbursement type obligations regarding workers153 compensation claims;
\nprovided<\/u>, however<\/u>, that upon the drawing of such letters of credit
\nor the incurrence of such Indebtedness, such obligations are reimbursed within
\n30 days following such drawing or incurrence;<\/p>\n (6) Indebtedness arising from agreements of the Issuer or its Restricted
\nSubsidiaries providing for indemnification, adjustment of purchase price or
\nsimilar obligations, in each case, incurred or assumed in connection with the
\ndisposition of any business, assets or a Subsidiary, other than guarantees of
\nIndebtedness incurred by any Person acquiring all or any portion of such
\nbusiness, assets or a Subsidiary for the purpose of financing such acquisition;
\nprovided<\/u>, however<\/u>, that<\/p>\n (A) such Indebtedness is not reflected on the balance sheet of the Issuer, or
\nany of its Restricted Subsidiaries (Contingent Obligations referred to in a
\nfootnote to financial statements and not otherwise reflected on the balance
\nsheet will not be deemed to be reflected on such balance sheet for purposes of
\nthis clause (6)(A)); and<\/p>\n (B) the maximum assumable liability in respect of all such Indebtedness shall
\nat no time exceed the gross proceeds including non-cash proceeds (the fair
\nmarket value of such non-cash proceeds being measured at the time received and
\nwithout giving effect to any subsequent changes in value) actually received by
\nthe Issuer and its Restricted Subsidiaries in connection with such disposition;\n<\/p>\n (7) Indebtedness of the Issuer to a Restricted Subsidiary; provided<\/u>
\nthat any such Indebtedness owing to a Restricted Subsidiary that is not a
\nGuarantor is expressly subordinated in right of payment to the Notes;
\nprovided<\/u>, further<\/u>, that any subsequent issuance or transfer of any
\nCapital Stock or any other event which results in any Restricted Subsidiary
\nceasing to be a Restricted Subsidiary or any other subsequent transfer of any
\nsuch Indebtedness (except to the Issuer or another Restricted Subsidiary) shall
\nbe deemed, in each case, to be an incurrence of such Indebtedness not permitted
\nby this clause (7);<\/p>\n (8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another
\nRestricted Subsidiary; provided<\/u> that if a Guarantor incurs such
\nIndebtedness owing to a Restricted Subsidiary that is not a Guarantor, such
\nIndebtedness is expressly subordinated in right of payment to the Guarantee of
\nthe Notes of such Guarantor; provided<\/u>, further<\/u>, that any
\nsubsequent transfer of any such Indebtedness (except to the Issuer or another
\nRestricted Subsidiary) shall be deemed, in each case, to be an incurrence of
\nsuch Indebtedness not permitted by this clause (8);<\/p>\n -65-<\/p>\n
\n(9) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer
\nor another Restricted Subsidiary; provided<\/u> that any subsequent issuance
\nor transfer of any Capital Stock or any other event which results in any such
\nRestricted Subsidiary ceasing to be a Restricted Subsidiary or any other
\nsubsequent transfer of any such shares of Preferred Stock (except to the Issuer
\nor another of its Restricted Subsidiaries) shall be deemed in each case to be an
\nissuance of such shares of Preferred Stock not permitted by this clause (9);\n<\/p>\n (10) Hedging Obligations (excluding Hedging Obligations entered into for
\nspeculative purposes) for the purpose of limiting interest rate risk with
\nrespect to any Indebtedness permitted to be incurred pursuant to this Section
\n4.09, exchange rate risk or commodity pricing risk;<\/p>\n (11) obligations in respect of performance, bid, appeal and surety bonds and
\ncompletion guarantees provided by the Issuer or any of its Restricted
\nSubsidiaries in the ordinary course of business;<\/p>\n (12)(a) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,
\nDisqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary
\nequal to 100.0% of the net cash proceeds received by the Issuer since
\nimmediately after the Issue Date from the issue or sale of Equity Interests of
\nthe Issuer or cash contributed to the capital of the Issuer (in each case, other
\nthan Excluded Contributions or proceeds of Disqualified Stock or sales of Equity
\nInterests to the Issuer or any of its Subsidiaries) as determined in accordance
\nwith clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the extent such net
\ncash proceeds or cash have not been applied pursuant to such clauses to make
\nRestricted Payments or to make other Investments, payments or exchanges pursuant
\nto Section 4.07(b) hereof or to make Permitted Investments (other than Permitted
\nInvestments specified in clauses (1) and (3) of the definition thereof) and (b)
\nIndebtedness or Disqualified Stock of Issuer and Indebtedness, Disqualified
\nStock or Preferred Stock of the Issuer or any Restricted Subsidiary not
\notherwise permitted hereunder in an aggregate principal amount or liquidation
\npreference, which, when aggregated with the principal amount and liquidation
\npreference of all other Indebtedness, Disqualified Stock and Preferred Stock
\nthen outstanding and incurred pursuant to this clause (12)(b), does not at any
\none time outstanding exceed $150.0 million; provided<\/u>, however<\/u>,
\nthat on a pro<\/u> forma<\/u> basis, together with any amounts incurred and
\noutstanding by Restricted Subsidiaries that are not Guarantors pursuant to
\nSection 4.09(a) hereof and clause (14) of this Section 4.09(b), no more than
\n$225.0 million of Indebtedness, Disqualified Stock or Preferred Stock at any one
\ntime outstanding and incurred pursuant to this clause (12)(b) shall be incurred
\nby Restricted Subsidiaries that are not Guarantors (it being understood that any
\nIndebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this
\nclause (12)(b) shall cease to be deemed incurred or outstanding for purposes of
\nthis clause (12)(b) but shall be deemed incurred for the purposes of Section
\n4.09(a) hereof from and after the first date on which the Issuer or such
\nRestricted Subsidiary could have incurred such Indebtedness, Disqualified Stock
\nor Preferred Stock under Section 4.09(a) hereof without reliance on this clause
\n(12)(b));<\/p>\n -66-<\/p>\n
\n(13) the incurrence or issuance by the Issuer or any Restricted Subsidiary of
\nthe Issuer of Indebtedness, Disqualified Stock or Preferred Stock of the Issuer
\nor any Restricted Subsidiary which serves to refund, refinance, replace, renew,
\nextend or defease any Indebtedness, Disqualified Stock or Preferred Stock
\nincurred as permitted under Section 4.09(a) hereof and clauses (2), (3) and
\n(12)(a) of this Section 4.09(b), this clause (13) and clause (14) of this
\nSection 4.09(b) or any Indebtedness, Disqualified Stock or Preferred Stock
\nissued to so refund or refinance such Indebtedness, Disqualified Stock or
\nPreferred Stock including additional Indebtedness, Disqualified Stock or
\nPreferred Stock incurred to pay premiums (including reasonable tender premiums),
\ndefeasance costs and fees in connection therewith (the “Refinancing
\nIndebtedness<\/u>“) prior to its respective maturity; provided<\/u>,
\nhowever<\/u>, that such Refinancing Indebtedness:<\/p>\n (A) has a Weighted Average Life to Maturity at the time such Refinancing
\nIndebtedness is incurred which is not less than the remaining Weighted Average
\nLife to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock
\nbeing refunded, refinanced, replaced, renewed, extended or defeased,<\/p>\n (B) to the extent such Refinancing Indebtedness refinances (i) Indebtedness
\nsubordinated or pari<\/u> passu<\/u> to the Notes or any Guarantee thereof,
\nsuch Refinancing Indebtedness is subordinated or pari<\/u> passu<\/u> to the
\nNotes or the Guarantee at least to the same extent as the Indebtedness being
\nrefinanced or refunded or (ii) Disqualified Stock or Preferred Stock, such
\nRefinancing Indebtedness must be Disqualified Stock or Preferred Stock,
\nrespectively, and<\/p>\n (C) shall not include:<\/p>\n (i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of
\nthe Issuer that is not a Guarantor that refinances Indebtedness, Disqualified
\nStock or Preferred Stock of the Issuer;<\/p>\n (ii) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of
\nthe Issuer, that is not a Guarantor that refinances Indebtedness, Disqualified
\nStock or Preferred Stock of a Guarantor; or<\/p>\n (iii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a
\nRestricted Subsidiary that refinances Indebtedness, Disqualified Stock or
\nPreferred Stock of an Unrestricted Subsidiary;<\/p>\n and provided<\/u>, further<\/u>, that subclause (A) of this clause (13)
\nwill not apply to any refunding or refinancing of any Secured Indebtedness
\noutstanding;<\/p>\n (14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or
\na Restricted Subsidiary incurred to finance an acquisition or (y) Persons that
\nare acquired by the Issuer or any Restricted Subsidiary or merged into the
\nIssuer or a Restricted Subsidiary in accordance with the terms of this
\nIndenture; provided<\/u> that after giving effect to such acquisition or
\nmerger, either<\/p>\n (a) the Issuer would be permitted to incur at least $1.00 of additional
\nIndebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
\nSection 4.09(a) hereof, or<\/p>\n (b) the Fixed Charge Coverage Ratio of the Issuer and the Restricted
\nSubsidiaries is greater than immediately prior to such acquisition or merger;\n<\/p>\n provided<\/u>, however<\/u>, that on a pro<\/u> forma<\/u> basis,
\ntogether with amounts incurred and outstanding pursuant to Section 4.09(a)
\nhereof and clause (12)(b) of this Section 4.09(b), no more than $225.0 million
\nof Indebtedness, Disqualified Stock or Preferred Stock at any one time
\noutstanding and incurred by Restricted Subsidiaries that are not Guarantors
\npursuant to this clause (14) shall be incurred and outstanding;<\/p>\n -67-<\/p>\n
\n(15) Indebtedness arising from the honoring by a bank or other financial
\ninstitution of a check, draft or similar instrument drawn against insufficient
\nfunds in the ordinary course of business; provided<\/u> that such Indebtedness
\nis extinguished within two Business Days of its incurrence;<\/p>\n (16) Indebtedness of the Issuer or any of its Restricted Subsidiaries
\nsupported by a letter of credit issued pursuant to Credit Facilities, in a
\nprincipal amount not in excess of the stated amount of such letter of credit;\n<\/p>\n (17)(a) any guarantee by the Issuer or a Restricted Subsidiary of
\nIndebtedness or other obligations of any Restricted Subsidiary so long as the
\nincurrence of such Indebtedness incurred by such Restricted Subsidiary is
\npermitted under the terms of this Indenture, or<\/p>\n (b) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer;
\nprovided<\/u> that such guarantee is incurred in accordance with Section 4.15
\nhereof;<\/p>\n (18) Indebtedness of Foreign Subsidiaries of the Issuer incurred not to
\nexceed at any one time outstanding, and together with any other Indebtedness
\nincurred under this clause (18), the greater of $60.0 million and 5.0% of the
\nTotal Assets of the Foreign Subsidiaries (it being understood that any
\nIndebtedness incurred pursuant to this clause (18) shall cease to be deemed
\nincurred or outstanding for purposes of this clause (18) but shall be deemed
\nincurred for the purposes of Section 4.09(a) hereof from and after the first
\ndate on which the Issuer or such Restricted Subsidiary could have incurred such
\nIndebtedness under Section 4.09(a) hereof without reliance on this clause (18));\n<\/p>\n (19) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted
\nSubsidiary incurred to finance or assumed in connection with an acquisition in a
\nprincipal amount not to exceed $50.0 million in the aggregate at any one time
\noutstanding together with all other Indebtedness, Disqualified Stock and\/or
\nPreferred Stock issued under this clause (19) (it being understood that any
\nIndebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this
\nclause (19) shall cease to be deemed incurred or outstanding for purposes of
\nthis clause (19) but shall be deemed incurred for the purposes of Section
\n4.09(a) hereof from and after the first date on which such Restricted Subsidiary
\ncould have incurred such Indebtedness, Disqualified Stock or Preferred Stock
\nunder Section 4.09(a) hereof without reliance on this clause (19));<\/p>\n (20) Indebtedness of the Issuer or any of its Restricted Subsidiaries
\nconsisting of (i) the financing of insurance premiums or (ii) take-or-pay
\nobligations contained in supply arrangements in each case, incurred in the
\nordinary course of business; and<\/p>\n (21) Indebtedness consisting of Indebtedness issued by the Issuer or any of
\nits Restricted Subsidiaries to current or former officers, directors and
\nemployees thereof, their respective estates, spouses or former spouses, in each
\ncase to finance the purchase or redemption of Equity Interests of the Issuer or
\nany direct or indirect parent company of the Issuer to the extent described in
\nclause (4) of Section 4.07(b) hereof.<\/p>\n (c) For purposes of determining compliance with this Section 4.09:<\/p>\n (1) in the event that an item of Indebtedness, Disqualified Stock or
\nPreferred Stock (or any portion thereof) meets the criteria of more than one of
\nthe categories of permitted Indebtedness, Disqualified Stock or Preferred Stock
\ndescribed in clauses (1) through (21) of Section 4.09(b) hereof or is entitled
\nto be incurred pursuant to Section 4.09(a) hereof, the Issuer, in its sole
\ndiscretion, shall classify or reclassify such item of Indebtedness, Disqualified
\nStock or Preferred Stock (or any portion thereof) and shall only be required to
\ninclude the amount and type of such Indebtedness, Disqualified Stock or
\nPreferred Stock in one of the above clauses; provided<\/u> that all
\nIndebtedness outstanding under the Credit Facilities on the Issue Date shall be
\ntreated as incurred on the Issue Date under clause (1) of Section 4.09(b)
\nhereof; and<\/p>\n -68-<\/p>\n
\n(2) at the time of incurrence, the Issuer shall be entitled to divide and
\nclassify an item of Indebtedness in more than one of the types of Indebtedness
\ndescribed in Sections 4.09(a) and 4.09(b) hereof.<\/p>\n Accrual of interest or dividends, the accretion of accreted value, the
\naccretion or amortization of original issue discount and the payment of interest
\nor dividends in the form of additional Indebtedness, Disqualified Stock or
\nPreferred Stock shall not be deemed to be an incurrence of Indebtedness,
\nDisqualified Stock or Preferred Stock for purposes of this Section 4.09.<\/p>\n For purposes of determining compliance with any U.S. dollar-denominated
\nrestriction on the incurrence of Indebtedness, the U.S. dollar-equivalent
\nprincipal amount of Indebtedness denominated in a foreign currency shall be
\ncalculated based on the relevant currency exchange rate in effect on the date
\nsuch Indebtedness was incurred, in the case of term debt, or first committed, in
\nthe case of revolving credit debt; provided<\/u> that if such Indebtedness is
\nincurred to refinance other Indebtedness denominated in a foreign currency, and
\nsuch refinancing would cause the applicable U.S. dollar-denominated restriction
\nto be exceeded if calculated at the relevant currency exchange rate in effect on
\nthe date of such refinancing, such U.S. dollar-denominated restriction shall be
\ndeemed not to have been exceeded so long as the principal amount of such
\nrefinancing Indebtedness does not exceed the principal amount of such
\nIndebtedness being refinanced.<\/p>\n The principal amount of any Indebtedness incurred to refinance other
\nIndebtedness, if incurred in a different currency from the Indebtedness being
\nrefinanced, shall be calculated based on the currency exchange rate applicable
\nto the currencies in which such respective Indebtedness is denominated that is
\nin effect on the date of such refinancing.<\/p>\n Notwithstanding anything to the contrary, the Issuer shall not, and shall not
\npermit any Guarantor to, directly or indirectly, incur any Indebtedness
\n(including Acquired Indebtedness) that is subordinated or junior in right of
\npayment to any Indebtedness of the Issuer or such Guarantor, as the case may be,
\nunless such Indebtedness is expressly subordinated in right of payment to the
\nNotes or such Guarantor153s Guarantee to the extent and in the same manner as such
\nIndebtedness is subordinated to other Indebtedness of the Issuer or such
\nGuarantor, as the case may be.<\/p>\n For the purposes of this Indenture, Indebtedness that is unsecured is not
\ndeemed to be subordinated or junior to Secured Indebtedness merely because it is
\nunsecured, and Senior Indebtedness is not deemed to be subordinated or junior to
\nany other Senior Indebtedness merely because it has a junior priority with
\nrespect to the same collateral.<\/p>\n Section 4.10 Asset Sales<\/u>.<\/p>\n (a) The Issuer shall not, and shall not permit any of its Restricted
\nSubsidiaries to, consummate, directly or indirectly, an Asset Sale, unless:<\/p>\n (1) the Issuer or such Restricted Subsidiary, as the case may be, receives
\nconsideration at the time of such Asset Sale at least equal to the fair market
\nvalue (as determined in good faith by the board of directors of the Issuer) of
\nthe assets sold or otherwise disposed of; and<\/p>\n -69-<\/p>\n
\n(2) except in the case of a Permitted Asset Swap, at least 75% of the
\nconsideration therefor received by the Issuer or such Restricted Subsidiary, as
\nthe case may be, is in the form of cash or Cash Equivalents; provided<\/u>
\nthat the amount of:<\/p>\n (A) any liabilities (as reflected on the Issuer153s or such Restricted
\nSubsidiary153s most recent balance sheet or in the footnotes thereto, or if
\nincurred or accrued subsequent to the date of such balance sheet, such
\nliabilities that would have been shown on the Issuer or such Restricted
\nSubsidiary153s balance sheet or in the footnotes thereto if such incurrence or
\naccrual had taken place on or prior to the date of such balance sheet, as
\ndetermined in good faith by the Issuer) of the Issuer or such Restricted
\nSubsidiary, other than liabilities that are by their terms subordinated to the
\nNotes, that are assumed by the transferee of any such assets and for which the
\nIssuer and all of its Restricted Subsidiaries have been validly released by all
\ncreditors in writing,<\/p>\n (B) any securities received by the Issuer or such Restricted Subsidiary from
\nsuch transferee that are converted by the Issuer or such Restricted Subsidiary
\ninto cash (to the extent of the cash received) within 180 days following the
\nclosing of such Asset Sale, and<\/p>\n (C) any Designated Non-cash Consideration received by the Issuer or such
\nRestricted Subsidiary in such Asset Sale having an aggregate fair market value,
\ntaken together with all other Designated Non-cash Consideration received
\npursuant to this clause (C) that is at that time outstanding, not to exceed 2.5%
\nof Total Assets at the time of the receipt of such Designated Non-cash
\nConsideration, with the fair market value of each item of Designated Non-cash
\nConsideration being measured at the time received and without giving effect to
\nsubsequent changes in value,<\/p>\n shall be deemed to be cash for purposes of this provision and for no other
\npurpose.<\/p>\n (b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale,
\nthe Issuer or such Restricted Subsidiary, at its option, may apply the Net
\nProceeds from such Asset Sale,<\/p>\n (1) to permanently reduce:<\/p>\n (A) Obligations under the Senior Credit Facilities; and to correspondingly
\nreduce commitments with respect thereto;<\/p>\n (B) Obligations under Senior Indebtedness that is secured by a Lien, which
\nLien is permitted by this Indenture, and to correspondingly reduce commitments
\nwith respect thereto;<\/p>\n (C) Obligations under other Senior Indebtedness (and to correspondingly
\nreduce commitments with respect thereto), provided<\/u> that, to the extent
\nthe Issuer reduces Obligations under such Senior Indebtedness, the Issuer shall
\nequally and ratably reduce Obligations under the Notes as provided under Section
\n3.07 hereof through open-market purchases (to the extent such purchases are at
\nor above 100% of the principal amount thereof) or by making an offer (in
\naccordance with the procedures set forth under Section 4.10(c) hereof) to all
\nHolders to purchase their Notes at 100% of the principal amount thereof, plus
\nthe amount of accrued but unpaid interest, if any, on the amount of Notes that
\nwould otherwise be prepaid; or<\/p>\n -70-<\/p>\n
\n(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other
\nthan Indebtedness owed to the Issuer or another Restricted Subsidiary;<\/p>\n (2) to make (A) an Investment in any one or more businesses, provided<\/u>
\nthat such Investment in any business is in the form of the acquisition of
\nCapital Stock and results in the Issuer or another of its Restricted
\nSubsidiaries, as the case may be, owning an amount of the Capital Stock of such
\nbusiness such that it constitutes a Restricted Subsidiary, (B) capital
\nexpenditures or (C) acquisitions of other assets, in each of (A), (B) and (C),
\nused or useful in a Similar Business, or<\/p>\n (3) to make an investment in (A) any one or more businesses, provided<\/u>
\nthat such Investment in any business is in the form of the acquisition of
\nCapital Stock and results in the Issuer or another of its Restricted
\nSubsidiaries, as the case may be, owning an amount of the Capital Stock of such
\nbusiness such that it constitutes a Restricted Subsidiary, (B) properties or (C)
\nacquisitions of other assets that, in each of (A), (B) and (C), replace the
\nbusinesses, properties and\/or assets that are the subject of such Asset Sale;\n<\/p>\n provided <\/u>that, in the case of clauses (2) and (3) above, a binding
\ncommitment shall be treated as a permitted application of the Net Proceeds from
\nthe date of such commitment so long as the Issuer, or such other Restricted
\nSubsidiary enters into such commitment with the good faith expectation that such
\nNet Proceeds shall be applied to satisfy such commitment within 180 days of such
\ncommitment (an “Acceptable Commitment<\/u>“) and, in the event any Acceptable
\nCommitment is later cancelled or terminated for any reason before the Net
\nProceeds are applied in connection therewith, the Issuer or such Restricted
\nSubsidiary enters into another Acceptable Commitment (a “Second
\nCommitment<\/u>“) within 180 days of such cancellation or termination;
\nprovided<\/u>, further<\/u>, that if any Second Commitment is later
\ncancelled or terminated for any reason before such Net Proceeds are applied,
\nthen such Net Proceeds shall constitute Excess Proceeds.<\/p>\n (c) Any Net Proceeds from the Asset Sale that are not invested or applied as
\nprovided and within the time period set forth in Section 4.10(b) shall be deemed
\nto constitute “Excess Proceeds<\/u>.” When the aggregate amount of Excess
\nProceeds exceeds $100.0 million, the Issuer shall make an offer to all Holders
\nof the Notes and, if required by the terms of any Indebtedness that is
\npari<\/u> passu<\/u> with the Notes (“Pari Passu Indebtedness<\/u>“), to
\nthe holders of such Pari Passu Indebtedness (an “Asset Sale Offer<\/u>“), to
\npurchase the maximum aggregate principal amount of the Notes and such Pari Passu
\nIndebtedness that equal to $2,000 or an integral multiple of $1,000 in excess
\nthereof that may be purchased out of the Excess Proceeds at an offer price in
\ncash in an amount equal to 100% of the principal amount thereof, plus accrued
\nand unpaid interest and Additional Interest, if any, to the date fixed for the
\nclosing of such offer, in accordance with the procedures set forth in this
\nIndenture. The Issuer shall commence an Asset Sale Offer with respect to Excess
\nProceeds within ten Business Days after the date that Excess Proceeds exceed
\n$25.0 million by mailing the notice required pursuant to the terms of this
\nIndenture, with a copy to the Trustee.<\/p>\n (d) To the extent that the aggregate amount of Notes and such Pari Passu
\nIndebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
\nProceeds, the Issuer may use any remaining Excess Proceeds for general corporate
\npurposes, subject to other covenants contained in this Indenture. If the
\naggregate principal amount of Notes or the Pari Passu Indebtedness surrendered
\nby such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall
\nselect the Notes and such Pari Passu Indebtedness to be purchased on a pro
\nrata<\/u> basis based on the accreted value or principal amount of the Notes or
\nsuch Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale
\nOffer, the amount of Excess Proceeds shall be reset at zero.<\/p>\n -71-<\/p>\n
\n(e) Pending the final application of any Net Proceeds pursuant to this
\nSection 4.10, the holder of such Net Proceeds may apply such Net Proceeds
\ntemporarily to reduce Indebtedness outstanding under a revolving credit facility
\nor otherwise invest such Net Proceeds in any manner not prohibited by this
\nIndenture.<\/p>\n (f) The notice, if mailed in a manner herein provided, shall be conclusively
\npresumed to have been given, whether or not the Holder receives such notice. If
\n(a) the notice is mailed in a manner herein provided and (b) any Holder fails to
\nreceive such notice or a Holder receives such notice but it is defective, such
\nHolder153s failure to receive such notice or such defect shall not affect the
\nvalidity of the proceedings for the purchase of the Notes as to all other
\nHolders that properly received such notice without defect. The Issuer shall
\ncomply with the requirements of Rule 14e-1 under the Exchange Act and any other
\nsecurities laws and regulations thereunder to the extent such laws or
\nregulations are applicable in connection with the repurchase of the Notes
\npursuant to an Asset Sale Offer. To the extent that the provisions of any
\nsecurities laws or regulations conflict with the provisions of this Indenture,
\nthe Issuer shall comply with the applicable securities laws and regulations and
\nshall not be deemed to have breached its obligations described in this Indenture
\nby virtue thereof.<\/p>\n Section 4.11 Transactions with Affiliates<\/u>.<\/p>\n (a) The Issuer shall not, and shall not permit any of its Restricted
\nSubsidiaries to, make any payment to, or sell, lease, transfer or otherwise
\ndispose of any of its properties or assets to, or purchase any property or
\nassets from, or enter into or make or amend any transaction, contract,
\nagreement, understanding, loan, advance or guarantee with, or for the benefit
\nof, any Affiliate of the Issuer (each of the foregoing, an “Affiliate
\nTransaction<\/u>“) involving aggregate payments or consideration in excess of
\n$10.0 million, unless:<\/p>\n (1) such Affiliate Transaction is on terms that are not materially less
\nfavorable to the Issuer or its relevant Restricted Subsidiary than those that
\nwould have been obtained in a comparable transaction by the Issuer or such
\nRestricted Subsidiary with an unrelated Person on an arm153s-length basis; and\n<\/p>\n (2) the Issuer delivers to the Trustee with respect to any Affiliate
\nTransaction or series of related Affiliate Transactions involving aggregate
\npayments or consideration in excess of $30.0 million, a resolution adopted by
\nthe majority of the board of directors of the Issuer approving such Affiliate
\nTransaction and set forth in an Officer153s Certificate certifying that such
\nAffiliate Transaction complies with clause (1) of this Section 4.11(a).<\/p>\n (b) The provisions of Section 4.11(a) hereof shall not apply to the
\nfollowing:<\/p>\n (1) transactions between or among the Issuer or any of its Restricted
\nSubsidiaries;<\/p>\n (2) Restricted Payments permitted by Section 4.07 hereof and the definition
\nof “Permitted Investments”;<\/p>\n (3) the payment of management, consulting, monitoring and advisory fees and
\nrelated expenses to the Investors pursuant to the Sponsor Management Agreement
\n(plus any unpaid management, consulting, monitoring and advisory fees and
\nrelated expenses within such amount accrued in any prior year) and the
\ntermination fees pursuant to the Sponsor Management Agreement, in each case as
\nin effect on the Issue Date or any amendment thereto (so long as any such
\namendment is not disadvantageous, in the good faith judgment of the board of
\ndirectors of the Issuer, to the Holders when taken as a whole as compared to the
\nSponsor Management Agreement in effect on the Issue Date);<\/p>\n -72-<\/p>\n
\n(4) the payment of reasonable and customary fees paid to, and indemnities
\nprovided for the benefit of, former, current or future officers, directors,
\nemployees or consultants of the Issuer, any of its direct or indirect parent
\ncompanies or any of its Restricted Subsidiaries;<\/p>\n (5) transactions in which the Issuer or any of its Restricted Subsidiaries,
\nas the case may be, delivers to the Trustee a letter from an Independent
\nFinancial Advisor stating that such transaction is fair to the Issuer or such
\nRestricted Subsidiary from a financial point of view or stating that the terms
\nare not materially less favorable to the Issuer or its relevant Restricted
\nSubsidiary than those that would have been obtained in a comparable transaction
\nby the Issuer or such Restricted Subsidiary with an unrelated Person on an
\narm153s-length basis;<\/p>\n (6) any agreement or arrangement as in effect as of the Issue Date, or any
\namendment thereto (so long as any such amendment is not disadvantageous to the
\nHolders when taken as a whole as compared to the applicable agreement as in
\neffect on the Issue Date);<\/p>\n (7) the existence of, or the performance by the Issuer or any of its
\nRestricted Subsidiaries of its obligations under the terms of, any stockholders
\nagreement or the equivalent (including any registration rights agreement or
\npurchase agreement related thereto) to which it is a party as of the Issue Date
\nand any similar agreements which it may enter into thereafter; provided<\/u>,
\nhowever<\/u>, that the existence of, or the performance by the Issuer or any
\nof its Restricted Subsidiaries of, obligations under any future amendment to any
\nsuch existing agreement or under any similar agreement entered into after the
\nIssue Date shall only be permitted by this clause (7) to the extent that the
\nterms of any such existing agreement together with all amendments thereto are
\nnot otherwise disadvantageous to the Holders when taken as a whole;<\/p>\n (8) the Transaction and the payment of all fees and expenses related to the
\nTransaction, in each case as expressly contemplated in the Offering Memorandum;\n<\/p>\n (9) transactions with customers, clients, suppliers, or purchasers or sellers
\nof goods or services, in each case in the ordinary course of business and
\notherwise in compliance with the terms of this Indenture which are fair to the
\nIssuer and its Restricted Subsidiaries, in the reasonable determination of the
\nboard of directors of the Issuer or the senior management thereof, or are on
\nterms at least as favorable as might reasonably have been obtained at such time
\nfrom an unaffiliated party;<\/p>\n (10) the issuance or transfer of Equity Interests (other than Disqualified
\nStock) of the Issuer to any Permitted Holder or to any director, officer,
\nemployee or consultant (or their respective estates, investment funds,
\ninvestment vehicles, spouses or former spouses) of the Issuer, any of its direct
\nor indirect parent companies or any of its Subsidiaries;<\/p>\n (11) sales of accounts receivable, or participations therein, in connection
\nwith any Receivables Facility;<\/p>\n (12) payments by the Issuer or any of its Restricted Subsidiaries to any of
\nthe Investors made for any financial advisory, financing, underwriting or
\nplacement services or in respect of other investment banking activities,
\nincluding, without limitation, in connection with acquisitions or divestitures
\nwhich payments are approved by a majority of the board of directors of the
\nIssuer in good faith;<\/p>\n -73-<\/p>\n
\n(13) payments or loans (or cancellation of loans) to employees or consultants
\nof the Issuer, any of its direct or indirect parent companies or any of its
\nRestricted Subsidiaries and employment agreements, stock option plans and other
\nsimilar arrangements with such employees or consultants which, in each case, are
\napproved by the Issuer in good faith; and<\/p>\n (14) investments by the Investors in securities of the Issuer or any of its
\nRestricted Subsidiaries so long as (i) the investment is being offered generally
\nto other investors on the same or more favorable terms and (ii) the investment
\nconstitutes less than 5% of the proposed or outstanding issue amount of such
\nclass of securities.<\/p>\n Section 4.12 Liens<\/u>.<\/p>\n The Issuer shall not, and shall not permit any Guarantor to, directly or
\nindirectly, create, incur, assume or suffer to exist any Lien (except Permitted
\nLiens) that secures obligations under any Indebtedness or any related Guarantee,
\non any asset or property of the Issuer or any Guarantor, or any income or
\nprofits therefrom, or assign or convey any right to receive income therefrom,
\nunless:<\/p>\n (1) in the case of Liens securing Subordinated Indebtedness, the Notes and
\nrelated Guarantees are secured by a Lien on such property, assets or proceeds
\nthat is senior in priority to such Liens; or<\/p>\n (2) in all other cases, the Notes or the Guarantees are equally and ratably
\nsecured, except that the foregoing shall not apply to Liens securing the Notes
\nand the related Guarantees.<\/p>\n Section 4.13 Corporate Existence<\/u>.<\/p>\n Subject to Article 5 hereof, the Issuer shall do or cause to be done all
\nthings necessary to preserve and keep in full force and effect (i) its corporate
\nexistence, and the corporate, partnership or other existence of each of its
\nRestricted Subsidiaries, in accordance with the respective organizational
\ndocuments (as the same may be amended from time to time) of the Issuer or any
\nsuch Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
\nand franchises of the Issuer and its Restricted Subsidiaries; provided<\/u>
\nthat the Issuer shall not be required to preserve any such right, license or
\nfranchise, or the corporate, partnership or other existence of any of its
\nRestricted Subsidiaries, if the Issuer in good faith shall determine that the
\npreservation thereof is no longer desirable in the conduct of the business of
\nthe Issuer and its Restricted Subsidiaries, taken as a whole.<\/p>\n Section 4.14 Offer to Repurchase Upon Change of Control<\/u>.<\/p>\n (a) If a Change of Control occurs, unless the Issuer has previously or
\nconcurrently mailed a redemption notice with respect to all the outstanding
\nNotes as described under Section 3.07 hereof, the Issuer shall make an offer to
\npurchase all of the Notes pursuant to the offer described below (the “Change
\nof Control Offer<\/u>“) at a price in cash (the “Change of Control
\nPayment<\/u>“) equal to 101% of the aggregate principal amount thereof plus
\naccrued and unpaid interest and Additional Interest, if any, to the date of
\npurchase, subject to the right of Holders of the Notes of record on the relevant
\nRecord Date to receive interest due on the relevant Interest Payment Date.
\nWithin 30 days following any Change of Control, the Issuer shall send notice of
\nsuch Change of Control Offer by first-class mail, with a copy to the Trustee, to
\neach Holder of Notes to the address of such Holder appearing in the security
\nregister with a copy to the Trustee or otherwise in accordance with the
\nprocedure of DTC, with the following information:<\/p>\n (1) that a Change of Control Offer is being made pursuant to this Section
\n4.14 and that all Notes properly tendered pursuant to such Change of Control
\nOffer will be accepted for payment by the Issuer;<\/p>\n -74-<\/p>\n
\n(2) the purchase price and the purchase date, which will be no earlier than
\n30 days nor later than 60 days from the date such notice is mailed (the
\n“Change of Control Payment Date<\/u>“);<\/p>\n (3) that any Note not properly tendered will remain outstanding and continue
\nto accrue interest;<\/p>\n (4) that unless the Issuer defaults in the payment of the Change of Control
\nPayment, all Notes accepted for payment pursuant to the Change of Control Offer
\nwill cease to accrue interest on the Change of Control Payment Date;<\/p>\n (5) that Holders electing to have any Notes purchased pursuant to a Change of
\nControl Offer will be required to surrender such Notes, with the form entitled
\n“Option of Holder to Elect Purchase” on the reverse of such Notes completed, to
\nthe paying agent specified in the notice at the address specified in the notice
\nprior to the close of business on the third Business Day preceding the Change of
\nControl Payment Date;<\/p>\n (6) that Holders shall be entitled to withdraw their tendered Notes and their
\nelection to require the Issuer to purchase such Notes, provided <\/u>that the
\npaying agent receives, not later than the close of business on the 30th day
\nfollowing the date of the Change of Control notice, a telegram, telex, facsimile
\ntransmission or letter setting forth the name of the Holder of the Notes, the
\nprincipal amount of Notes tendered for purchase, and a statement that such
\nHolder is withdrawing its tendered Notes and its election to have such Notes
\npurchased;<\/p>\n (7) that if the Issuer is redeeming less than all of the Notes, the Holders
\nof the remaining Notes will be issued new Notes and such new Notes will be equal
\nin principal amount to the unpurchased portion of the Notes surrendered. The
\nunpurchased portion of the Notes must be equal to $2,000 or an integral multiple
\nof $1,000 in excess thereof; and<\/p>\n (8) the other instructions, as determined by the Issuer, consistent with this
\nSection 4.14, that a Holder must follow.<\/p>\n The Issuer shall comply with the requirements of Rule 14e-1 under the
\nExchange Act and any other securities laws and regulations thereunder to the
\nextent such laws or regulations are applicable in connection with the repurchase
\nof Notes pursuant to a Change of Control Offer. To the extent that the
\nprovisions of any securities laws or regulations conflict with the provisions of
\nthis Section 4.14, the Issuer shall comply with the applicable securities laws
\nand regulations and shall not be deemed to have breached its obligations under
\nthis Section 4.14 by virtue thereof.<\/p>\n (b) On the Change of Control Payment Date, the Issuer shall, to the extent
\npermitted by law,<\/p>\n (1) accept for payment all Notes issued by it or portions thereof properly
\ntendered pursuant to the Change of Control Offer,<\/p>\n (2) deposit with the Paying Agent an amount equal to the aggregate Change of
\nControl Payment in respect of all Notes or portions thereof so tendered, and\n<\/p>\n -75-<\/p>\n
\n(3) deliver, or cause to be delivered, to the Trustee for cancellation the
\nNotes so accepted together with an Officer153s Certificate to the Trustee stating
\nthat such Notes or portions thereof have been tendered to and purchased by the
\nIssuer.<\/p>\n (c) The Issuer shall not be required to make a Change of Control Offer
\nfollowing a Change of Control if a third party makes the Change of Control Offer
\nin the manner, at the times and otherwise in compliance with the requirements
\nset forth in this Section 4.14 applicable to a Change of Control Offer made by
\nthe Issuer and purchases all Notes validly tendered and not withdrawn under such
\nChange of Control Offer. Notwithstanding anything to the contrary herein, a
\nChange of Control Offer may be made in advance of a Change of Control,
\nconditional upon such Change of Control, if a definitive agreement is in place
\nfor the Change of Control at the time of making of the Change of Control Offer.\n<\/p>\n (d) Other than as specifically provided in this Section 4.14, any purchase
\npursuant to this Section 4.14 shall be made pursuant to the provisions of
\nSections 3.02, 3.05 and 3.06 hereof.<\/p>\n Section 4.15 Limitation on Guarantees of Indebtedness by Restricted
\nSubsidiaries<\/u>.<\/p>\n The Issuer shall not permit any of its Wholly-Owned Subsidiaries that are
\nRestricted Subsidiaries (and non-Wholly-Owned Subsidiaries if such
\nnon-Wholly-Owned Subsidiaries guarantee other capital markets debt securities),
\nother than a Guarantor or a Foreign Subsidiary, to guarantee the payment of any
\nIndebtedness of the Issuer or any other Guarantor unless:<\/p>\n (1) such Restricted Subsidiary within 30 days executes and delivers a
\nsupplemental indenture to this Indenture, the form of which is attached as
\nExhibit D<\/u> hereto, providing for a Guarantee by such Restricted
\nSubsidiary, except that with respect to a guarantee of Indebtedness of the
\nIssuer or any Guarantor:<\/p>\n (a) if the Notes or such Guarantor153s Guarantee is subordinated in right of
\npayment to such Indebtedness, the Guarantee under the supplemental indenture
\nshall be subordinated to such Restricted Subsidiary153s guarantee with respect to
\nsuch Indebtedness substantially to the same extent as the Notes are subordinated
\nto such Indebtedness; and<\/p>\n (b) if such Indebtedness is by its express terms subordinated in right of
\npayment to the Notes or such Guarantor153s Guarantee, any such guarantee by such
\nRestricted Subsidiary with respect to such Indebtedness shall be subordinated in
\nright of payment to such Guarantee substantially to the same extent as such
\nIndebtedness is subordinated to the Notes; and<\/p>\n (2) such Restricted Subsidiary waives and shall not in any manner whatsoever
\nclaim or take the benefit or advantage of, any rights of reimbursement,
\nindemnity or subrogation or any other rights against the Issuer or any other
\nRestricted Subsidiary as a result of any payment by such Restricted Subsidiary
\nunder its Guarantee;<\/p>\n provided<\/u> that this Section 4.15 shall not be applicable to any
\nguarantee of any Restricted Subsidiary that existed at the time such Person
\nbecame a Restricted Subsidiary and was not incurred in connection with, or in
\ncontemplation of, such Person becoming a Restricted Subsidiary.<\/p>\n -76-<\/p>\n
\nSection 4.16 Discharge and Suspension of Covenants<\/u>.<\/p>\n (a) If after the Issue Date (i) the Notes have Investment Grade Ratings from
\nboth Rating Agencies and (ii) no Default has occurred and is continuing under
\nthis Indenture then, beginning on that day Section 4.07 hereof, Section 4.08
\nhereof, Section 4.09 hereof, Section 4.10 hereof, Section 4.11 hereof, Section
\n4.14 hereof and clause (4) of Section 5.01(a) hereof (collectively, the
\n“Suspended Covenants<\/u>“) shall no longer be applicable to the Notes. In
\naddition, the amount of Excess Proceeds from Net Proceeds shall be reset at
\nzero.<\/p>\n (b) In the event that the Issuer and the Restricted Subsidiaries are not
\nsubject to the Suspended Covenants under this Indenture for any period of time
\n(such period the “Suspension Period<\/u>“) as a result of the foregoing, and
\non any subsequent date (the “Reversion Date<\/u>“) one or both of the Rating
\nAgencies (i) withdraw their Investment Grade Rating or downgrade the rating
\nassigned to the Notes below an Investment Grade Rating and\/or (ii) the Issuer or
\nany of its Affiliates enter into an agreement to effect a transaction that would
\nresult in a Change of Control and one or more of the Rating Agencies indicate
\nthat if consummated, such transaction (alone or together with any related
\nrecapitalization or refinancing transactions) would cause such Rating Agency to
\nwithdraw its Investment Grade Rating or downgrade the ratings assigned to the
\nNotes below an Investment Grade Rating, then the Issuer and the Restricted
\nSubsidiaries shall thereafter again be subject to the Suspended Covenants under
\nthis Indenture with respect to future events, including, without limitation, a
\nproposed transaction described in clause (ii).<\/p>\n (c) In the event of any such reinstatement, no action taken or omitted to be
\ntaken by the Issuer or any of its Restricted Subsidiaries prior to such
\nreinstatement will give rise to a Default or Event of Default under the
\nIndentures with respect to the Notes; provided<\/u> that (i) with respect to
\nRestricted Payments made after any such reinstatement, the amount of Restricted
\nPayments made will be calculated as though Section 4.07 had been in effect prior
\nto, but not during the Suspension Period, provided<\/u> that any Subsidiaries
\ndesignated as Unrestricted Subsidiaries during the Suspension Period shall
\nautomatically become Restricted Subsidiaries on the Reversion Date (subject to
\nthe Issuer153s right to subsequently designate them as Unrestricted Subsidiaries
\nin compliance with the covenants set out below) and (ii) all Indebtedness
\nincurred, or Disqualified Stock or Preferred Stock issued, during the Suspension
\nPeriod will be classified to have been incurred or issued pursuant to clause (3)
\nof Section 4.09(b)<\/p>\n (d) The Issuer shall deliver promptly to the Trustee an Officer153s Certificate
\nnotifying it of any such occurrence under this Section 4.16.<\/p>\n ARTICLE 5<\/p>\n SUCCESSORS<\/p>\n Section 5.01 Merger, Consolidation or Sale of All or Substantially All
\nAssets<\/u>.<\/p>\n (a) The Issuer shall not consolidate or merge with or into or wind up into
\n(whether or not the Issuer is the surviving corporation), or sell, assign,
\ntransfer, lease, convey or otherwise dispose of all or substantially all of its
\nproperties or assets, in one or more related transactions, to any Person unless:\n<\/p>\n (1) the Issuer is the surviving corporation or the Person formed by or
\nsurviving any such consolidation or merger (if other than the Issuer) or to
\nwhich such sale, assignment, transfer, lease, conveyance or other disposition
\nwill have been made is a corporation organized or existing under the laws of the
\njurisdiction of organization of the Issuer or the laws of the United States, any
\nstate thereof, the District of Columbia, or any territory thereof (such Person,
\nas the case may be, being herein called the “Successor Company<\/u>“);<\/p>\n (2) the Successor Company, if other than the Issuer, expressly assumes all
\nthe obligations of the Issuer under the Notes pursuant to supplemental
\nindentures or other documents or instruments in form reasonably satisfactory to
\nthe Trustee;<\/p>\n -77-<\/p>\n
\n(3) immediately after such transaction, no Default exists;<\/p>\n (4) immediately after giving pro<\/u> forma<\/u> effect to such
\ntransaction and any related financing transactions, as if such transactions had
\noccurred at the beginning of the applicable four-quarter period,<\/p>\n (A) the Successor Company would be permitted to incur at least $1.00 of
\nadditional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
\nforth in Section 4.09(a) hereof, or<\/p>\n (B) the Fixed Charge Coverage Ratio for the Successor Company, the Issuer and
\nits Restricted Subsidiaries would be greater than such Ratio for the Issuer and
\nits Restricted Subsidiaries immediately prior to such transaction;<\/p>\n (5) each Guarantor, unless it is the other party to the transactions
\ndescribed above, in which case Section 5.01(c)(1)(B) hereof shall apply, shall
\nhave by supplemental indenture confirmed that its Guarantee shall apply to such
\nPerson153s obligations under this Indenture, the Notes and the Registration Rights
\nAgreement; and<\/p>\n (6) the Issuer shall have delivered to the Trustee an Officer153s Certificate
\nand an Opinion of Counsel, each stating that such consolidation, merger or
\ntransfer and such supplemental indentures, if any, comply with this Indenture.\n<\/p>\n (b) The Successor Company shall succeed to, and be substituted for, the
\nIssuer, as the case may be, under this Indenture, the Guarantees and the Notes,
\nas applicable. Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,\n<\/p>\n (1) any Restricted Subsidiary may consolidate with or merge into or transfer
\nall or part of its properties and assets to the Issuer, and<\/p>\n (2) the Issuer may merge with an Affiliate of the Issuer, as the case may be,
\nsolely for the purpose of reincorporating the Issuer in any state of the United
\nStates, the District of Columbia or any territory thereof so long as the amount
\nof Indebtedness of the Issuer and its Restricted Subsidiaries is not increased
\nthereby.<\/p>\n (c) Subject to certain limitations described in this Indenture governing
\nrelease of a Guarantee upon the sale, disposition or transfer of a Guarantor, no
\nGuarantor shall, and the Issuer shall not permit any Guarantor to, consolidate
\nor merge with or into or wind up into (whether or not the Issuer or Guarantor is
\nthe surviving corporation), or sell, assign, transfer, lease, convey or
\notherwise dispose of all or substantially all of its properties or assets, in
\none or more related transactions, to any Person unless:<\/p>\n (1) (A) such Guarantor is the surviving corporation or the Person formed by
\nor surviving any such consolidation or merger (if other than such Guarantor) or
\nto which such sale, assignment, transfer, lease, conveyance or other disposition
\nwill have been made is a corporation, partnership, limited partnership, limited
\nliability corporation or trust organized or existing under the laws of the
\njurisdiction of organization of such Guarantor, as the case may be, or the laws
\nof the United States, any state thereof, the District of Columbia, or any
\nterritory thereof (such Guarantor or such Person, as the case may be, being
\nherein called the “Successor Person<\/u>“);<\/p>\n (B) the Successor Person, if other than such Guarantor, expressly assumes all
\nthe obligations of such Guarantor under this Indenture and such Guarantor153s
\nrelated Guarantee pursuant to supplemental indentures or other documents or
\ninstruments in form reasonably satisfactory to the Trustee;<\/p>\n -78-<\/p>\n
\n(C) immediately after such transaction, no Default exists; and<\/p>\n (D) the Issuer shall have delivered to the Trustee an Officer153s Certificate
\nand an Opinion of Counsel, each stating that such consolidation, merger or
\ntransfer and such supplemental indentures, if any, comply with this Indenture;
\nor<\/p>\n (2) the transaction is made in compliance with Section 4.10 hereof.<\/p>\n (d) Subject to certain limitations described in this Indenture, the Successor
\nPerson shall succeed to, and be substituted for, such Guarantor under this
\nIndenture and such Guarantor153s Guarantee. Notwithstanding the foregoing, any
\nGuarantor may (i) merge into or transfer all or part of its properties and
\nassets to another Guarantor or the Issuer, (ii) merge with an Affiliate of the
\nIssuer solely for the purpose of reincorporating or reorganizing the Guarantor
\nin the United States, any state thereof, the District of Columbia or any
\nterritory thereof so long as the amount of Indebtedness of the Issuer and its
\nRestricted Subsidiaries is not increased thereby, or (iii) convert into a
\ncorporation, partnership, limited partnership, limited liability corporation or
\ntrust organized or existing under the laws of the jurisdiction of such
\nGuarantor.<\/p>\n (e) Notwithstanding anything to the contrary, the mergers contemplated by the
\nTransaction Agreement shall be permitted without compliance with this Section
\n5.01.<\/p>\n Section 5.02 Successor Corporation Substituted<\/u>.<\/p>\n Upon any consolidation or merger, or any sale, assignment, transfer, lease,
\nconveyance or other disposition of all or substantially all of the assets of the
\nIssuer in accordance with Section 5.01 hereof, the successor corporation formed
\nby such consolidation or into or with which the Issuer is merged or to which
\nsuch sale, assignment, transfer, lease, conveyance or other disposition is made
\nshall succeed to, and be substituted for (so that from and after the date of
\nsuch consolidation, merger, sale, lease, conveyance or other disposition, the
\nprovisions of this Indenture referring to the Issuer shall refer instead to the
\nsuccessor corporation and not to the Issuer), and may exercise every right and
\npower of the Issuer under this Indenture with the same effect as if such
\nsuccessor Person had been named as the Issuer herein; provided<\/u> that the
\npredecessor Issuer shall not be relieved from the obligation to pay the
\nprincipal of and interest and Additional Interest, if any, on the Notes except
\nin the case of a sale, assignment, transfer, conveyance or other disposition of
\nall of the Issuer153s assets that meets the requirements of Section 5.01 hereof.\n<\/p>\n ARTICLE 6<\/p>\n DEFAULTS AND REMEDIES<\/p>\n Section 6.01 Events of Default<\/u>.<\/p>\n (a) An “Event of Default<\/u>” wherever used herein, means any one of the
\nfollowing events (whatever the reason for such Event of Default and whether it
\nshall be voluntary or involuntary or be effected by operation of law or pursuant
\nto any judgment, decree or order of any court or any order, rule or regulation
\nof any administrative or governmental body):<\/p>\n (1) default in payment when due and payable, upon redemption, acceleration or
\notherwise, of principal of, or premium, if any, on the Notes;<\/p>\n -79-<\/p>\n
\n(2) default for 30 days or more in the payment when due of interest or
\nAdditional Interest on or with respect to the Notes;<\/p>\n (3) failure by the Issuer or any Guarantor for 60 days after receipt of
\nwritten notice given by the Trustee or the Holders of not less than 30% in
\nprincipal amount of the outstanding Notes to comply with any of its obligations,
\ncovenants or agreements (other than a default referred to in clauses (1) and (2)
\nabove) contained in this Indenture or the Notes;<\/p>\n (4) default under any mortgage, indenture or instrument under which there is
\nissued or by which there is secured or evidenced any Indebtedness for money
\nborrowed by the Issuer or any of its Restricted Subsidiaries or the payment of
\nwhich is guaranteed by the Issuer or any of its Restricted Subsidiaries, other
\nthan Indebtedness owed to the Issuer or a Restricted Subsidiary, whether such
\nIndebtedness or guarantee now exists or is created after the issuance of the
\nNotes, if both:<\/p>\n (i) such default either results from the failure to pay any principal of such
\nIndebtedness at its stated final maturity (after giving effect to any applicable
\ngrace periods) or relates to an obligation other than the obligation to pay
\nprincipal of any such Indebtedness at its stated final maturity and results in
\nthe holder or holders of such Indebtedness causing such Indebtedness to become
\ndue prior to its stated maturity; and<\/p>\n (ii) the principal amount of such Indebtedness, together with the principal
\namount of any other such Indebtedness in default for failure to pay principal at
\nits stated final maturity (after giving effect to any applicable grace periods),
\nor the maturity of which has been so accelerated, aggregate $35.0 million or
\nmore at any one time outstanding;<\/p>\n (5) failure by the Issuer or any Significant Subsidiary (or group of
\nSubsidiaries that together would constitute a Significant Subsidiary) to pay
\nfinal judgments aggregating in excess of $35.0 million, which final judgments
\nremain unpaid, undischarged and unstayed for a period of more than 60 days after
\nsuch judgment becomes final, and in the event such judgment is covered by
\ninsurance, an enforcement proceeding has been commenced by any creditor upon
\nsuch judgment or decree which is not promptly stayed;<\/p>\n (6) the Issuer or any of its Restricted Subsidiaries that is a Significant
\nSubsidiary or any group of Restricted Subsidiaries that, taken together, would
\nconstitute a Significant Subsidiary, pursuant to or within the meaning of any
\nBankruptcy Law:<\/p>\n (i) commences proceedings to be adjudicated bankrupt or insolvent;<\/p>\n (ii) consents to the institution of bankruptcy or insolvency proceedings
\nagainst it, or the filing by it of a petition or answer or consent seeking
\nreorganization or relief under applicable Bankruptcy Law;<\/p>\n (iii) consents to the appointment of a receiver, liquidator, assignee,
\ntrustee, sequestrator or other similar official of it or for all or
\nsubstantially all of its property;<\/p>\n (iv) makes a general assignment for the benefit of its creditors; or<\/p>\n -80-<\/p>\n
\n(v) generally is not paying its debts as they become due;<\/p>\n (7) a court of competent jurisdiction enters an order or decree under any
\nBankruptcy Law that:<\/p>\n (i) is for relief against the Issuer or any of its Restricted Subsidiaries
\nthat is a Significant Subsidiary or any group of Restricted Subsidiaries that,
\ntaken together, would constitute a Significant Subsidiary, in a proceeding in
\nwhich the Issuer or any such Restricted Subsidiaries, that is a Significant
\nSubsidiary or any group of Restricted Subsidiaries that, taken together, would
\nconstitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;\n<\/p>\n (ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or
\nother similar official of the Issuer or any of its Restricted Subsidiaries that
\nis a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
\ntogether, would constitute a Significant Subsidiary, or for all or substantially
\nall of the property of the Issuer or any of its Restricted Subsidiaries that is
\na Significant Subsidiary or any group of Restricted Subsidiaries that, taken
\ntogether, would constitute a Significant Subsidiary; or<\/p>\n (iii) orders the liquidation of the Issuer or any of its Restricted
\nSubsidiaries that is a Significant Subsidiary or any group of Restricted
\nSubsidiaries that, taken together, would constitute a Significant Subsidiary;\n<\/p>\n and the order or decree remains unstayed and in effect for 60 consecutive
\ndays; or<\/p>\n (8) the Guarantee of any Significant Subsidiary shall for any reason cease to
\nbe in full force and effect or be declared null and void or any responsible
\nofficer of any Guarantor that is a Significant Subsidiary (or group of
\nSubsidiaries that together would constitute a Significant Subsidiary), as the
\ncase may be, denies that it has any further liability under its Guarantee or
\ngives notice to such effect, other than by reason of the termination of this
\nIndenture or the release of any such Guarantee in accordance with this
\nIndenture.<\/p>\n (b) In the event of any Event of Default specified in clause (4) of Section
\n6.01(a) hereof, such Event of Default and all consequences thereof (excluding
\nany resulting payment default, other than as a result of acceleration of the
\nNotes) shall be annulled, waived and rescinded, automatically and without any
\naction by the Trustee or the Holders, if within 20 days after such Event of
\nDefault arose:<\/p>\n (1) the Indebtedness or guarantee that is the basis for such Event of Default
\nhas been discharged; or<\/p>\n (2) holders thereof have rescinded or waived the acceleration, notice or
\naction (as the case may be) giving rise to such Event of Default; or<\/p>\n (3) the default that is the basis for such Event of Default has been cured.\n<\/p>\n Section 6.02 Acceleration<\/u>.<\/p>\n If any Event of Default (other than an Event of Default specified in clause
\n(6) or (7) of Section 6.01(a) hereof) occurs and is continuing under this
\nIndenture, the Trustee or the Holders of at least 30% in principal amount of the
\nthen total outstanding Notes may declare the principal, premium, if any,
\ninterest and any other monetary obligations on all the then outstanding Notes to
\nbe due and payable immediately. Upon the effectiveness of such declaration, such
\nprincipal and interest shall be due and payable immediately. The Trustee shall
\nhave no obligation to accelerate the Notes if and so long as a committee of its
\nResponsible Officers in good faith determines acceleration is not in the best
\ninterest of the Holders of the Notes.<\/p>\n -81-<\/p>\n
\nNotwithstanding the foregoing, in the case of an Event of Default arising
\nunder clause (6) or (7) of Section 6.01(a) hereof, all outstanding Notes shall
\nbe due and payable immediately without further action or notice.<\/p>\n The Holders of a majority in aggregate principal amount of the then
\noutstanding Notes by written notice to the Trustee may on behalf of all of the
\nHolders rescind an acceleration and its consequences if the rescission would not
\nconflict with any judgment or decree and if all existing Events of Default
\n(except nonpayment of principal, interest, Additional Interest, if any, or
\npremium that has become due solely because of the acceleration) have been cured
\nor waived.<\/p>\n Section 6.03 Other Remedies<\/u>.<\/p>\n If an Event of Default occurs and is continuing, the Trustee may pursue any
\navailable remedy to collect the payment of principal, premium, if any, and
\ninterest on the Notes or to enforce the performance of any provision of the
\nNotes or this Indenture.<\/p>\n The Trustee may maintain a proceeding even if it does not possess any of the
\nNotes or does not produce any of them in the proceeding. A delay or omission by
\nthe Trustee or any Holder of a Note in exercising any right or remedy accruing
\nupon an Event of Default shall not impair the right or remedy or constitute a
\nwaiver of or acquiescence in the Event of Default. All remedies are cumulative
\nto the extent permitted by law.<\/p>\n Section 6.04 Waiver of Past Defaults<\/u>.<\/p>\n Holders of not less than a majority in aggregate principal amount of the then
\noutstanding Notes by notice to the Trustee may on behalf of the Holders of all
\nof the Notes waive any existing Default and its consequences hereunder, except a
\ncontinuing Default in the payment of the principal of, premium, if any,
\nAdditional Interest, if any, or interest on, any Note held by a non-consenting
\nHolder (including in connection with an Asset Sale Offer or a Change of Control
\nOffer); provided<\/u>, subject to Section 6.02 hereof, that the Holders of a
\nmajority in aggregate principal amount of the then outstanding Notes may rescind
\nan acceleration and its consequences, including any related payment default that
\nresulted from such acceleration. Upon any such waiver, such Default shall cease
\nto exist, and any Event of Default arising therefrom shall be deemed to have
\nbeen cured for every purpose of this Indenture; but no such waiver shall extend
\nto any subsequent or other Default or impair any right consequent thereon.<\/p>\n Section 6.05 Control by Majority<\/u>.<\/p>\n Holders of a majority in principal amount of the then total outstanding Notes
\nmay direct the time, method and place of conducting any proceeding for any
\nremedy available to the Trustee or of exercising any trust or power conferred on
\nthe Trustee. The Trustee, however, may refuse to follow any direction that
\nconflicts with law or this Indenture or that the Trustee determines is unduly
\nprejudicial to the rights of any other Holder of a Note or that would involve
\nthe Trustee in personal liability.<\/p>\n -82-<\/p>\n
\nSection 6.06 Limitation on Suits<\/u>.<\/p>\n Subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy
\nwith respect to this Indenture or the Notes unless:<\/p>\n (1) such Holder has previously given the Trustee notice that an Event of
\nDefault is continuing;<\/p>\n (2) Holders of at least 30% in principal amount of the total outstanding
\nNotes have requested the Trustee to pursue the remedy;<\/p>\n (3) Holders of the Notes have offered and, if requested, provide to the
\nTrustee indemnity or security reasonably satisfactory to the Trustee against any
\nloss, liability or expense;<\/p>\n (4) the Trustee has not complied with such request within 60 days after the
\nreceipt thereof and the offer of security or indemnity; and<\/p>\n (5) Holders of a majority in principal amount of the total outstanding Notes
\nhave not given the Trustee a direction inconsistent with such request within
\nsuch 60-day period.<\/p>\n A Holder of a Note may not use this Indenture to prejudice the rights of
\nanother Holder of a Note or to obtain a preference or priority over another
\nHolder of a Note.<\/p>\n Section 6.07 Rights of Holders of Notes to Receive Payment<\/u>.<\/p>\n Notwithstanding any other provision of this Indenture, the right of any
\nHolder of a Note to receive payment of principal, premium, if any, and
\nAdditional Interest, if any, and interest on the Note, on or after the
\nrespective due dates expressed in the Note (including in connection with an
\nAsset Sale Offer or a Change of Control Offer), or to bring suit for the
\nenforcement of any such payment on or after such respective dates, shall not be
\nimpaired or affected without the consent of such Holder.<\/p>\n Section 6.08 Collection Suit by Trustee<\/u>.<\/p>\n If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs
\nand is continuing, the Trustee is authorized to recover judgment in its own name
\nand as trustee of an express trust against the Issuer for the whole amount of
\nprincipal of, premium, if any, and Additional Interest, if any, and interest
\nremaining unpaid on the Notes and interest on overdue principal and, to the
\nextent lawful, interest and such further amount as shall be sufficient to cover
\nthe costs and expenses of collection, including the reasonable compensation,
\nexpenses, disbursements and advances of the Trustee, its agents and counsel.\n<\/p>\n Section 6.09 Restoration of Rights and Remedies<\/u>.<\/p>\n If the Trustee or any Holder has instituted any proceeding to enforce any
\nright or remedy under this Indenture and such proceeding has been discontinued
\nor abandoned for any reason, or has been determined adversely to the Trustee or
\nto such Holder, then and in every such case, subject to any determination in
\nsuch proceedings, the Issuer, the Trustee and the Holders shall be restored
\nseverally and respectively to their former positions hereunder and thereafter
\nall rights and remedies of the Trustee and the Holders shall continue as though
\nno such proceeding has been instituted.<\/p>\n -83-<\/p>\n
\nSection 6.10 Rights and Remedies Cumulative<\/u>.<\/p>\n Except as otherwise provided with respect to the replacement or payment of
\nmutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or
\nremedy herein conferred upon or reserved to the Trustee or to the Holders is
\nintended to be exclusive of any other right or remedy, and every right and
\nremedy shall, to the extent permitted by law, be cumulative and in addition to
\nevery other right and remedy given hereunder or now or hereafter existing at law
\nor in equity or otherwise. The assertion or employment of any right or remedy
\nhereunder, or otherwise, shall not prevent the concurrent assertion or
\nemployment of any other appropriate right or remedy.<\/p>\n Section 6.11 Delay or Omission Not Waiver<\/u>.<\/p>\n No delay or omission of the Trustee or of any Holder of any Note to exercise
\nany right or remedy accruing upon any Event of Default shall impair any such
\nright or remedy or constitute a waiver of any such Event of Default or an
\nacquiescence therein. Every right and remedy given by this Article or by law to
\nthe Trustee or to the Holders may be exercised from time to time, and as often
\nas may be deemed expedient, by the Trustee or by the Holders, as the case may
\nbe.<\/p>\n Section 6.12 Trustee May File Proofs of Claim<\/u>.<\/p>\n The Trustee is authorized to file such proofs of claim and other papers or
\ndocuments as may be necessary or advisable in order to have the claims of the
\nTrustee (including any claim for the reasonable compensation, expenses,
\ndisbursements and advances of the Trustee, its agents and counsel) and the
\nHolders of the Notes allowed in any judicial proceedings relative to the Issuer
\n(or any other obligor upon the Notes including the Guarantors), its creditors or
\nits property and shall be entitled and empowered to participate as a member in
\nany official committee of creditors appointed in such matter and to collect,
\nreceive and distribute any money or other property payable or deliverable on any
\nsuch claims and any custodian in any such judicial proceeding is hereby
\nauthorized by each Holder to make such payments to the Trustee, and in the event
\nthat the Trustee shall consent to the making of such payments directly to the
\nHolders, to pay to the Trustee any amount due to it for the reasonable
\ncompensation, expenses, disbursements and advances of the Trustee, its agents
\nand counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
\nthe extent that the payment of any such compensation, expenses, disbursements
\nand advances of the Trustee, its agents and counsel, and any other amounts due
\nthe Trustee under Section 7.07 hereof out of the estate in any such proceeding,
\nshall be denied for any reason, payment of the same shall be secured by a Lien
\non, and shall be paid out of, any and all distributions, dividends, money,
\nsecurities and other properties that the Holders may be entitled to receive in
\nsuch proceeding whether in liquidation or under any plan of reorganization or
\narrangement or otherwise. Nothing herein contained shall be deemed to authorize
\nthe Trustee to authorize or consent to or accept or adopt on behalf of any
\nHolder any plan of reorganization, arrangement, adjustment or composition
\naffecting the Notes or the rights of any Holder, or to authorize the Trustee to
\nvote in respect of the claim of any Holder in any such proceeding.<\/p>\n Section 6.13 Priorities<\/u>.<\/p>\n If the Trustee collects any money pursuant to this Article 6, it shall pay
\nout the money in the following order:<\/p>\n (i) to the Trustee, its agents and attorneys for amounts due under Section
\n7.07 hereof, including payment of all compensation, expenses and liabilities
\nincurred, and all advances made, by the Trustee and the costs and expenses of
\ncollection;<\/p>\n -84-<\/p>\n
\n(ii) to Holders of Notes for amounts due and unpaid on the Notes for
\nprincipal, premium, if any, and Additional Interest, if any, and interest,
\nratably, without preference or priority of any kind, according to the amounts
\ndue and payable on the Notes for principal, premium, if any, and Additional
\nInterest, if any, and interest, respectively; and<\/p>\n (iii) to the Issuer or to such party as a court of competent jurisdiction
\nshall direct, including a Guarantor, if applicable.<\/p>\n The Trustee may fix a record date and payment date for any payment to Holders
\nof Notes pursuant to this Section 6.13.<\/p>\n Section 6.14 Undertaking for Costs<\/u>.<\/p>\n In any suit for the enforcement of any right or remedy under this Indenture
\nor in any suit against the Trustee for any action taken or omitted by it as a
\nTrustee, a court in its discretion may require the filing by any party litigant
\nin the suit of an undertaking to pay the costs of the suit, and the court in its
\ndiscretion may assess reasonable costs, including reasonable attorneys153 fees,
\nagainst any party litigant in the suit, having due regard to the merits and good
\nfaith of the claims or defenses made by the party litigant. This Section 6.14
\ndoes not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
\nto Section 6.07 hereof, or a suit by Holders of more than 10% in principal
\namount of the then outstanding Notes.<\/p>\n ARTICLE 7<\/p>\n TRUSTEE<\/p>\n Section 7.01 Duties of Trustee<\/u>.<\/p>\n (a) If an Event of Default has occurred and is continuing, the Trustee shall
\nexercise such of the rights and powers vested in it by this Indenture, and use
\nthe same degree of care and skill in its exercise as a prudent person would
\nexercise or use under the circumstances in the conduct of such person153s own
\naffairs.<\/p>\n (b) Except during the continuance of an Event of Default:<\/p>\n (i) the duties of the Trustee shall be determined solely by the express
\nprovisions of this Indenture and the Trustee need perform only those duties that
\nare specifically set forth in this Indenture and no others, and no implied
\ncovenants or obligations shall be read into this Indenture against the Trustee;
\nand<\/p>\n (ii) in the absence of bad faith on its part, the Trustee may conclusively
\nrely, as to the truth of the statements and the correctness of the opinions
\nexpressed therein, upon certificates or opinions furnished to the Trustee and
\nconforming to the requirements of this Indenture. However, in the case of any
\nsuch certificates or opinions which by any provision hereof are specifically
\nrequired to be furnished to the Trustee, the Trustee shall examine the
\ncertificates and opinions to determine whether or not they conform to the
\nrequirements of this Indenture.<\/p>\n (c) The Trustee may not be relieved from liabilities for its own negligent
\naction, its own negligent failure to act, or its own willful misconduct, except
\nthat:<\/p>\n (i) this paragraph does not limit the effect of paragraph (b) of this Section
\n7.01;<\/p>\n -85-<\/p>\n
\n(ii) the Trustee shall not be liable for any error of judgment made in good
\nfaith by a Responsible Officer, unless it is proved in a court of competent
\njurisdiction that the Trustee was negligent in ascertaining the pertinent facts;
\nand<\/p>\n (iii) the Trustee shall not be liable with respect to any action it takes or
\nomits to take in good faith in accordance with a direction received by it
\npursuant to Section 6.05 hereof.<\/p>\n (d) Whether or not therein expressly so provided, every provision of this
\nIndenture that in any way relates to the Trustee is subject to paragraphs (a),
\n(b) and (c) of this Section 7.01.<\/p>\n (e) The Trustee shall be under no obligation to exercise any of its rights or
\npowers under this Indenture at the request or direction of any of the Holders of
\nthe Notes unless the Holders have offered to the Trustee reasonable indemnity or
\nsecurity against any loss, liability or expense.<\/p>\n (f) The Trustee shall not be liable for interest on any money received by it
\nexcept as the Trustee may agree in writing with the Issuer. Money held in trust
\nby the Trustee need not be segregated from other funds except to the extent
\nrequired by law.<\/p>\n Section 7.02 Rights of Trustee<\/u>.<\/p>\n (a) The Trustee may conclusively rely upon any document believed by it to be
\ngenuine and to have been signed or presented by the proper Person. The Trustee
\nneed not investigate any fact or matter stated in the document, but the Trustee,
\nin its discretion, may make such further inquiry or investigation into such
\nfacts or matters as it may see fit, and, if the Trustee shall determine to make
\nsuch further inquiry or investigation, it shall be entitled to examine the
\nbooks, records and premises of the Issuer, personally or by agent or attorney at
\nthe sole cost of the Issuer and shall incur no liability or additional liability
\nof any kind by reason of such inquiry or investigation.<\/p>\n (b) Before the Trustee acts or refrains from acting, it may require an
\nOfficer153s Certificate or an Opinion of Counsel or both. The Trustee shall not be
\nliable for any action it takes or omits to take in good faith in reliance on
\nsuch Officer153s Certificate or Opinion of Counsel. The Trustee may consult with
\ncounsel of its selection and the written advice of such counsel or any Opinion
\nof Counsel shall be full and complete authorization and protection from
\nliability in respect of any action taken, suffered or omitted by it hereunder in
\ngood faith and in reliance thereon.<\/p>\n (c) The Trustee may act through its attorneys and agents and shall not be
\nresponsible for the misconduct or negligence of any agent or attorney appointed
\nwith due care.<\/p>\n (d) The Trustee shall not be liable for any action it takes or omits to take
\nin good faith that it believes to be authorized or within the rights or powers
\nconferred upon it by this Indenture.<\/p>\n (e) Unless otherwise specifically provided in this Indenture, any demand,
\nrequest, direction or notice from the Issuer shall be sufficient if signed by an
\nOfficer of the Issuer.<\/p>\n (f) None of the provisions of this Indenture shall require the Trustee to
\nexpend or risk its own funds or otherwise to incur any liability, financial or
\notherwise, in the performance of any of its duties hereunder, or in the exercise
\nof any of its rights or powers if it shall have reasonable grounds for believing
\nthat repayment of such funds or indemnity satisfactory to it against such risk
\nor liability is not assured to it.<\/p>\n -86-<\/p>\n
\n(g) The Trustee shall not be deemed to have notice of any Default or Event of
\nDefault unless a Responsible Officer of the Trustee has actual knowledge thereof
\nor unless written notice of any event which is in fact such a Default is
\nreceived by the Trustee at the Corporate Trust Office of the Trustee, and such
\nnotice references the Notes and this Indenture.<\/p>\n (h) In no event shall the Trustee be responsible or liable for special,
\nindirect, or consequential loss or damage of any kind whatsoever (including, but
\nnot limited to, loss of profit) irrespective of whether the Trustee has been
\nadvised of the likelihood of such loss or damage and regardless of the form of
\naction.<\/p>\n (i) The rights, privileges, protections, immunities and benefits given to the
\nTrustee, including, without limitation, its right to be indemnified, are
\nextended to, and shall be enforceable by, the Trustee in each of its capacities
\nhereunder, and each agent, custodian and other Person employed to act hereunder.\n<\/p>\n (j) In the event the Issuer is required to pay Additional Interest, the
\nIssuer will provide written notice to the Trustee of the Issuer153s obligation to
\npay Additional Interest no later than 15 days prior to the next Interest Payment
\nDate, which notice shall set forth the amount of the Additional Interest to be
\npaid by the Issuer. The Trustee shall not at any time be under any duty or
\nresponsibility to any Holders to determine whether the Additional Interest is
\npayable and the amount thereof.<\/p>\n (k) The Trustee may request that the Issuer and any Guarantor deliver an
\nOfficer153s Certificate setting forth the names of the individuals and\/or titles
\nof Officers (with specimen signatures) authorized at such times to take specific
\nactions pursuant to this Indenture, which Officer153s Certificate may be signed by
\nany person specified as so authorized in any certificate previously delivered
\nand not superseded.<\/p>\n Section 7.03 Individual Rights of Trustee<\/u>.<\/p>\n The Trustee in its individual or any other capacity may become the owner or
\npledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the
\nIssuer with the same rights it would have if it were not Trustee. However, in
\nthe event that the Trustee acquires any conflicting interest it must eliminate
\nsuch conflict within 90 days, apply to the SEC for permission to continue as
\ntrustee or resign. Any Agent may do the same with like rights and duties. The
\nTrustee is also subject to Sections 7.10 and 7.11 hereof.<\/p>\n Section 7.04 Trustee153s Disclaimer<\/u>.<\/p>\n The Trustee shall not be responsible for and makes no representation as to
\nthe validity or adequacy of this Indenture or the Notes, it shall not be
\naccountable for the Issuer153s use of the proceeds from the Notes or any money
\npaid to the Issuer or upon the Issuer153s direction under any provision of this
\nIndenture, it shall not be responsible for the use or application of any money
\nreceived by any Paying Agent other than the Trustee, and it shall not be
\nresponsible for any statement or recital herein or any statement in the Notes or
\nany other document in connection with the sale of the Notes or pursuant to this
\nIndenture other than its certificate of authentication.<\/p>\n -87-<\/p>\n
\nSection 7.05 Notice of Defaults<\/u>.<\/p>\n If a Default occurs and is continuing and if it is known to the Trustee, the
\nTrustee shall mail to Holders of Notes a notice of the Default within 90 days
\nafter it occurs. Except in the case of a Default relating to the payment of
\nprincipal, premium, if any, or interest on any Note, the Trustee may withhold
\nfrom the Holders notice of any continuing Default if and so long as a committee
\nof its Responsible Officers in good faith determines that withholding the notice
\nis in the interests of the Holders of the Notes. The Trustee shall not be deemed
\nto know of any Default unless a Responsible Officer of the Trustee has actual
\nknowledge thereof or unless written notice of any event which is such a Default
\nis received by the Trustee at the Corporate Trust Office of the Trustee.<\/p>\n Section 7.06 Reports by Trustee to Holders of the Notes<\/u>.<\/p>\n Within 60 days after each May 15, beginning with the May 15 following the
\ndate of this Indenture, and for so long as Notes remain outstanding, the Trustee
\nshall mail to the Holders of the Notes a brief report dated as of such reporting
\ndate that complies with Trust Indenture Act Section 313(a) (but if no event
\ndescribed in Trust Indenture Act Section 313(a) has occurred within the twelve
\nmonths preceding the reporting date, no report need be transmitted). The Trustee
\nalso shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall
\nalso transmit by mail all reports as required by Trust Indenture Act Section
\n313(c).<\/p>\n A copy of each report at the time of its mailing to the Holders of Notes
\nshall be mailed to the Issuer and filed with the SEC and each stock exchange on
\nwhich the Notes are listed in accordance with Trust Indenture Act Section
\n313(d). The Issuer shall promptly notify the Trustee when the Notes are listed
\non any stock exchange.<\/p>\n Section 7.07 Compensation and Indemnity<\/u>.<\/p>\n The Issuer shall pay to the Trustee from time to time such compensation for
\nits acceptance of this Indenture and services hereunder as the parties shall
\nagree in writing from time to time. The Trustee153s compensation shall not be
\nlimited by any law on compensation of a trustee of an express trust. The Issuer
\nshall reimburse the Trustee promptly upon request for all reasonable
\ndisbursements, advances and expenses incurred or made by it in addition to the
\ncompensation for its services. Such expenses shall include the reasonable
\ncompensation, disbursements and expenses of the Trustee153s agents and counsel.\n<\/p>\n The Issuer and the Guarantors, jointly and severally, shall indemnify the
\nTrustee for, and hold the Trustee harmless against, any and all loss, damage,
\nclaim, liability or expense (including attorneys153 fees) incurred by it in
\nconnection with the acceptance or administration of this trust and the
\nperformance of its duties hereunder (including the costs and expenses of
\nenforcing this Indenture against the Issuer or any of the Guarantors (including
\nthis Section 7.07) or defending itself against any claim whether asserted by any
\nHolder, the Issuer or any Guarantor, or liability in connection with the
\nacceptance, exercise or performance of any of its powers or duties hereunder).
\nThe Trustee shall notify the Issuer promptly of any claim for which it may seek
\nindemnity. Failure by the Trustee to so notify the Issuer shall not relieve the
\nIssuer of its obligations hereunder. The Issuer shall defend the claim and the
\nTrustee may have separate counsel and the Issuer shall pay the fees and expenses
\nof such counsel. The Issuer need not reimburse any expense or indemnify against
\nany loss, liability or expense incurred by the Trustee through the Trustee153s own
\nwillful misconduct, negligence or bad faith.<\/p>\n The obligations of the Issuer under this Section 7.07 shall survive the
\nsatisfaction and discharge of this Indenture or the earlier resignation or
\nremoval of the Trustee.<\/p>\n To secure the payment obligations of the Issuer and the Guarantors in this
\nSection 7.07, the Trustee shall have a Lien prior to the Notes on all money or
\nproperty held or collected by the Trustee, except that held in trust to pay
\nprincipal and interest on particular Notes. Such Lien shall survive the
\nsatisfaction and discharge of this Indenture.<\/p>\n -88-<\/p>\n
\nWhen the Trustee incurs expenses or renders services after an Event of
\nDefault specified in Section 6.01(a)(6) or (7) hereof occurs, the expenses and
\nthe compensation for the services (including the fees and expenses of its agents
\nand counsel) are intended to constitute expenses of administration under any
\nBankruptcy Law.<\/p>\n The Trustee shall comply with the provisions of Trust Indenture Act Section
\n313(b)(2) to the extent applicable.<\/p>\n Section 7.08 Replacement of Trustee<\/u>.<\/p>\n A resignation or removal of the Trustee and appointment of a successor
\nTrustee shall become effective only upon the successor Trustee153s acceptance of
\nappointment as provided in this Section 7.08. The Trustee may resign in writing
\nat any time and be discharged from the trust hereby created by so notifying the
\nIssuer. The Holders of a majority in principal amount of the then outstanding
\nNotes may remove the Trustee by so notifying the Trustee and the Issuer in
\nwriting. The Issuer may remove the Trustee if:<\/p>\n (a) the Trustee fails to comply with Section 7.10 hereof;<\/p>\n (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief
\nis entered with respect to the Trustee under any Bankruptcy Law;<\/p>\n (c) a custodian or public officer takes charge of the Trustee or its
\nproperty; or<\/p>\n (d) the Trustee becomes incapable of acting.<\/p>\n If the Trustee resigns or is removed or if a vacancy exists in the office of
\nTrustee for any reason, the Issuer shall promptly appoint a successor Trustee.
\nWithin one year after the successor Trustee takes office, the Holders of a
\nmajority in principal amount of the then outstanding Notes may appoint a
\nsuccessor Trustee to replace the successor Trustee appointed by the Issuer.<\/p>\n If a successor Trustee does not take office within 60 days after the retiring
\nTrustee resigns or is removed, the retiring Trustee (at the Issuer153s expense),
\nthe Issuer or the Holders of at least 10% in principal amount of the then
\noutstanding Notes may petition any court of competent jurisdiction for the
\nappointment of a successor Trustee.<\/p>\n If the Trustee, after written request by any Holder who has been a Holder for
\nat least six months, fails to comply with Section 7.10 hereof, such Holder may
\npetition any court of competent jurisdiction for the removal of the Trustee and
\nthe appointment of a successor Trustee.<\/p>\n A successor Trustee shall deliver a written acceptance of its appointment to
\nthe retiring Trustee and to the Issuer. Thereupon, the resignation or removal of
\nthe retiring Trustee shall become effective, and the successor Trustee shall
\nhave all the rights, powers and duties of the Trustee under this Indenture. The
\nsuccessor Trustee shall mail a notice of its succession to Holders. The retiring
\nTrustee shall promptly transfer all property held by it as Trustee to the
\nsuccessor Trustee; provided<\/u> all sums owing to the Trustee hereunder have
\nbeen paid and subject to the Lien provided for in Section 7.07 hereof.
\nNotwithstanding replacement of the Trustee pursuant to this Section 7.08, the
\nIssuer153s obligations under Section 7.07 hereof shall continue for the benefit of
\nthe retiring Trustee.<\/p>\n -89-<\/p>\n
\nSection 7.09 Successor Trustee by Merger, Etc<\/u>.<\/p>\n If the Trustee consolidates, merges or converts into, or transfers all or
\nsubstantially all of its corporate trust business to, another corporation, the
\nsuccessor corporation without any further act shall be the successor Trustee.\n<\/p>\n Section 7.10 Eligibility; Disqualification<\/u>.<\/p>\n There shall at all times be a Trustee hereunder that is a corporation
\norganized and doing business under the laws of the United States of America or
\nof any state thereof that is authorized under such laws to exercise corporate
\ntrustee power, that is subject to supervision or examination by federal or state
\nauthorities and that has a combined capital and surplus of at least $50,000,000
\nas set forth in its most recent published annual report of condition.<\/p>\n This Indenture shall always have a Trustee who satisfies the requirements of
\nTrust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to
\nTrust Indenture Act Section 310(b).<\/p>\n Section 7.11 Preferential Collection of Claims Against Issuer<\/u>.<\/p>\n The Trustee is subject to Trust Indenture Act Section 311(a), excluding any
\ncreditor relationship listed in Trust Indenture Act Section 311(b). A Trustee
\nwho has resigned or been removed shall be subject to Trust Indenture Act Section
\n311(a) to the extent indicated therein.<\/p>\n ARTICLE 8<\/p>\n LEGAL DEFEASANCE AND COVENANT DEFEASANCE<\/p>\n Section 8.01 Option to Effect Legal Defeasance or Covenant
\nDefeasance<\/u>.<\/p>\n The Issuer may, at its option and at any time, elect to have either Section
\n8.02 or 8.03 hereof applied to all outstanding Notes upon compliance with the
\nconditions set forth below in this Article 8.<\/p>\n Section 8.02 Legal Defeasance and Discharge<\/u>.<\/p>\n Upon the Issuer153s exercise under Section 8.01 hereof of the option applicable
\nto this Section 8.02, the Issuer and the Guarantors shall, subject to the
\nsatisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
\nhave been discharged from their obligations with respect to all outstanding
\nNotes and Guarantees on the date the conditions set forth below are satisfied
\n(“Legal Defeasance<\/u>“). For this purpose, Legal Defeasance means that the
\nIssuer shall be deemed to have paid and discharged the entire Indebtedness
\nrepresented by the outstanding Notes, which shall thereafter be deemed to be
\n“outstanding” only for the purposes of Section 8.05 hereof and the other
\nSections of this Indenture referred to in (a) and (b) below, and to have
\nsatisfied all its other obligations under such Notes and this Indenture
\nincluding that of the Guarantors (and the Trustee, on demand of and at the
\nexpense of the Issuer, shall execute proper instruments acknowledging the same),
\nexcept for the following provisions which shall survive until otherwise
\nterminated or discharged hereunder:<\/p>\n (a) the rights of Holders of Notes to receive payments in respect of the
\nprincipal of, premium, if any, and interest on the Notes when such payments are
\ndue solely out of the trust created pursuant to this Indenture referred to in
\nSection 8.04 hereof;<\/p>\n -90-<\/p>\n
\n(b) the Issuer153s obligations with respect to Notes concerning issuing
\ntemporary Notes, registration of such Notes, mutilated, destroyed, lost or
\nstolen Notes and the maintenance of an office or agency for payment and money
\nfor security payments held in trust;<\/p>\n (c) the rights, powers, trusts, duties and immunities of the Trustee, and the
\nIssuer153s obligations in connection therewith; and<\/p>\n (d) this Section 8.02.<\/p>\n Subject to compliance with this Article 8, the Issuer may exercise its option
\nunder this Section 8.02 notwithstanding the prior exercise of its option under
\nSection 8.03 hereof.<\/p>\n Section 8.03 Covenant Defeasance<\/u>.<\/p>\n Upon the Issuer153s exercise under Section 8.01 hereof of the option applicable
\nto this Section 8.03, the Issuer and the Guarantors shall, subject to the
\nsatisfaction of the conditions set forth in Section 8.04 hereof, be released
\nfrom their obligations under the covenants contained in Sections 4.03, 4.04,
\n4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 hereof and clauses
\n(4) and (5) of Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect
\nto the outstanding Notes on and after the date the conditions set forth in
\nSection 8.04 hereof are satisfied (“Covenant Defeasance<\/u>“), and the Notes
\nshall thereafter be deemed not “outstanding” for the purposes of any direction,
\nwaiver, consent or declaration or act of Holders (and the consequences of any
\nthereof) in connection with such covenants, but shall continue to be deemed
\n“outstanding” for all other purposes hereunder (it being understood that such
\nNotes shall not be deemed outstanding for accounting purposes). For this
\npurpose, Covenant Defeasance means that, with respect to the outstanding Notes,
\nthe Issuer may omit to comply with and shall have no liability in respect of any
\nterm, condition or limitation set forth in any such covenant, whether directly
\nor indirectly, by reason of any reference elsewhere herein to any such covenant
\nor by reason of any reference in any such covenant to any other provision herein
\nor in any other document and such omission to comply shall not constitute a
\nDefault or an Event of Default under Section 6.01 hereof, but, except as
\nspecified above, the remainder of this Indenture and such Notes shall be
\nunaffected thereby. In addition, upon the Issuer153s exercise under Section 8.01
\nhereof of the option applicable to this Section 8.03, subject to the
\nsatisfaction of the conditions set forth in Section 8.04 hereof, Sections
\n6.01(a)(3), 6.01(a)(4), 6.01(a)(5), 6.01(a)(6) (solely with respect to
\nRestricted Subsidiaries that are Significant Subsidiaries), 6.01(a)(7) (solely
\nwith respect to Restricted Subsidiaries that are Significant Subsidiaries) and
\n6.01(a)(8) hereof shall not constitute Events of Default.<\/p>\n Section 8.04 Conditions to Legal or Covenant Defeasance<\/u>.<\/p>\n The following shall be the conditions to the application of either Section
\n8.02 or 8.03 hereof to the outstanding Notes:<\/p>\n In order to exercise either Legal Defeasance or Covenant Defeasance with
\nrespect to the Notes:<\/p>\n (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the
\nbenefit of the Holders of the Notes, cash in U.S. dollars, Government
\nSecurities, or a combination thereof, in such amounts as will be sufficient, in
\nthe opinion of a nationally recognized firm of independent public accountants,
\nto pay the principal of, premium, if any, and interest due on the Notes on the
\nstated maturity date or on the redemption date, as the case may be, of such
\nprincipal, premium, if any, or interest on such Notes and the Issuer must
\nspecify whether such Notes are being defeased to maturity or to a particular
\nredemption date;<\/p>\n -91-<\/p>\n
\n(2) in the case of Legal Defeasance, the Issuer shall have delivered to the
\nTrustee an Opinion of Counsel reasonably acceptable to the Trustee confirming
\nthat, subject to customary assumptions and exclusions,<\/p>\n (a) the Issuer has received from, or there has been published by, the United
\nStates Internal Revenue Service a ruling, or<\/p>\n (b) since the issuance of the Notes, there has been a change in the
\napplicable U.S. federal income tax law,<\/p>\n in either case to the effect that, and based thereon such Opinion of Counsel
\nshall confirm that, subject to customary assumptions and exclusions, the Holders
\nof the Notes will not recognize income, gain or loss for U.S. federal income tax
\npurposes, as applicable, as a result of such Legal Defeasance and will be
\nsubject to U.S. federal income tax on the same amounts, in the same manner and
\nat the same times as would have been the case if such Legal Defeasance had not
\noccurred;<\/p>\n (3) in the case of Covenant Defeasance, the Issuer shall have delivered to
\nthe Trustee an Opinion of Counsel reasonably acceptable to the Trustee
\nconfirming that, subject to customary assumptions and exclusions, the Holders of
\nthe Notes will not recognize income, gain or loss for U.S. federal income tax
\npurposes as a result of such Covenant Defeasance and will be subject to such tax
\non the same amounts, in the same manner and at the same times as would have been
\nthe case if such Covenant Defeasance had not occurred;<\/p>\n (4) no Default (other than that resulting from borrowing funds to be applied
\nto make such deposit and any similar and simultaneous deposit relating to other
\nIndebtedness, and, in each case the granting of Liens in connection therewith)
\nshall have occurred and be continuing on the date of such deposit;<\/p>\n (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach
\nor violation of, or constitute a default under the Senior Credit Facilities or
\nany other material agreement or instrument (other than this Indenture) to which,
\nthe Issuer or any Guarantor is a party or by which the Issuer or any Guarantor
\nis bound (other than that resulting from borrowing funds to be applied to make
\nsuch deposit and any similar and simultaneous deposit relating to other
\nIndebtedness and, in each case, the granting of Liens in connection therewith);\n<\/p>\n (6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to
\nthe effect that, as of the date of such opinion and subject to customary
\nassumptions and exclusions following the deposit, the trust funds will not be
\nsubject to the effect of Section 547 of Title 11 of the United States Code;<\/p>\n (7) the Issuer shall have delivered to the Trustee an Officer153s Certificate
\nstating that the deposit was not made by the Issuer with the intent of
\ndefeating, hindering, delaying or defrauding any creditors of the Issuer or any
\nGuarantor or others; and<\/p>\n (8) the Issuer shall have delivered to the Trustee an Officer153s Certificate
\nand an Opinion of Counsel (which Opinion of Counsel may be subject to customary
\nassumptions and exclusions) each stating that all conditions precedent provided
\nfor or relating to the Legal Defeasance or the Covenant Defeasance, as the case
\nmay be, have been complied with.<\/p>\n -92-<\/p>\n
\nSection 8.05 Deposited Money and Government Securities to Be Held in
\nTrust; Other Miscellaneous Provisions<\/u>.<\/p>\n Subject to Section 8.06 hereof, all money and Government Securities
\n(including the proceeds thereof) deposited with the Trustee (or other qualifying
\ntrustee, collectively for purposes of this Section 8.05, the “Trustee<\/u>“)
\npursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
\nheld in trust and applied by the Trustee, in accordance with the provisions of
\nsuch Notes and this Indenture, to the payment, either directly or through any
\nPaying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the
\nTrustee may determine, to the Holders of such Notes of all sums due and to
\nbecome due thereon in respect of principal, premium and Additional Interest, if
\nany, and interest, but such money need not be segregated from other funds except
\nto the extent required by law.<\/p>\n The Issuer shall pay and indemnify the Trustee against any tax, fee or other
\ncharge imposed on or assessed against the cash or Government Securities
\ndeposited pursuant to Section 8.04 hereof or the principal and interest received
\nin respect thereof other than any such tax, fee or other charge which by law is
\nfor the account of the Holders of the outstanding Notes.<\/p>\n Anything in this Article 8 to the contrary notwithstanding, the Trustee shall
\ndeliver or pay to the Issuer from time to time upon the request of the Issuer
\nany money or Government Securities held by it as provided in Section 8.04 hereof
\nwhich, in the opinion of a nationally recognized firm of independent public
\naccountants expressed in a written certification thereof delivered to the
\nTrustee (which may be the opinion delivered under Section 8.04(a) hereof), are
\nin excess of the amount thereof that would then be required to be deposited to
\neffect an equivalent Legal Defeasance or Covenant Defeasance.<\/p>\n Section 8.06 Repayment to Issuer<\/u>.<\/p>\n Any money deposited with the Trustee or any Paying Agent, or then held by the
\nIssuer, in trust for the payment of the principal of, premium and Additional
\nInterest, if any, or interest on any Note and remaining unclaimed for two years
\nafter such principal, and premium and Additional Interest, if any, or interest
\nhas become due and payable shall be paid to the Issuer on its request or (if
\nthen held by the Issuer) shall be discharged from such trust; and the Holder of
\nsuch Note shall thereafter look only to the Issuer for payment thereof, and all
\nliability of the Trustee or such Paying Agent with respect to such trust money,
\nand all liability of the Issuer as trustee thereof, shall thereupon cease.<\/p>\n Section 8.07 Reinstatement<\/u>.<\/p>\n If the Trustee or Paying Agent is unable to apply any United States dollars
\nor Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
\ncase may be, by reason of any order or judgment of any court or governmental
\nauthority enjoining, restraining or otherwise prohibiting such application, then
\nthe Issuer153s obligations under this Indenture and the Notes shall be revived and
\nreinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
\nhereof until such time as the Trustee or Paying Agent is permitted to apply all
\nsuch money in accordance with Section 8.02 or 8.03 hereof, as the case may be;
\nprovided<\/u> that, if the Issuer makes any payment of principal of, premium
\nand Additional Interest, if any, or interest on any Note following the
\nreinstatement of its obligations, the Issuer shall be subrogated to the rights
\nof the Holders of such Notes to receive such payment from the money held by the
\nTrustee or Paying Agent.<\/p>\n -93-<\/p>\n
\nARTICLE 9<\/p>\n AMENDMENT, SUPPLEMENT AND WAIVER<\/p>\n Section 9.01 Without Consent of Holders of Notes<\/u>.<\/p>\n Notwithstanding Section 9.02 hereof, the Issuer, any Guarantor (with respect
\nto a Guarantee or this Indenture) and the Trustee may amend or supplement this
\nIndenture and any Guarantee or Notes without the consent of any Holder:<\/p>\n (1) to cure any ambiguity, omission, mistake, defect or inconsistency;<\/p>\n (2) to provide for uncertificated Notes of such series in addition to or in
\nplace of certificated Notes;<\/p>\n (3) to comply with Section 5.01 hereof;<\/p>\n (4) to provide the assumption of the Issuer153s or any Guarantor153s obligations
\nto the Holders;<\/p>\n (5) to make any change that would provide any additional rights or benefits
\nto the Holders or that does not adversely affect the legal rights under this
\nIndenture of any such Holder;<\/p>\n (6) to add covenants for the benefit of the Holders or to surrender any right
\nor power conferred upon the Issuer or any Guarantor;<\/p>\n (7) to comply with requirements of the SEC in order to effect or maintain the
\nqualification of this Indenture under the Trust Indenture Act;<\/p>\n (8) to evidence and provide for the acceptance and appointment under this
\nIndenture of a successor Trustee thereunder pursuant to the requirements
\nthereof;<\/p>\n (9) to provide for the issuance of exchange notes or private exchange notes,
\nwhich are identical to exchange notes except that they are not freely
\ntransferable;<\/p>\n (10) to add a Guarantor under this Indenture;<\/p>\n (11) to conform the text of this Indenture, Guarantees or the Notes to any
\nprovision of the “Description of Notes” section of the Offering Memorandum to
\nthe extent that such provision in such “Description of Notes” section was
\nintended to be a verbatim recitation of a provision of this Indenture, Guarantee
\nor Notes; or<\/p>\n (12) to make any amendment to the provisions of this Indenture relating to
\nthe transfer and legending of Notes as permitted by this Indenture, including,
\nwithout limitation, to facilitate the issuance and administration of the Notes;
\nprovided<\/u>, however<\/u>, that (i) compliance with this Indenture as so
\namended would not result in Notes being transferred in violation of the
\nSecurities Act or any applicable securities law and (ii) such amendment does not
\nmaterially and adversely affect the rights of Holders to transfer Notes.<\/p>\n -94-<\/p>\n
\nUpon the request of the Issuer accompanied by a resolution of its board of
\ndirectors authorizing the execution of any such amended or supplemental
\nindenture, and upon receipt by the Trustee of the documents described in Section
\n7.02 hereof, the Trustee shall join with the Issuer and the Guarantors in the
\nexecution of any amended or supplemental indenture authorized or permitted by
\nthe terms of this Indenture and to make any further appropriate agreements and
\nstipulations that may be therein contained, but the Trustee shall not be
\nobligated to enter into such amended or supplemental indenture that affects its
\nown rights, duties or immunities under this Indenture or otherwise.
\nNotwithstanding the foregoing, no Opinion of Counsel shall be required in
\nconnection with the addition of a Guarantor under this Indenture upon execution
\nand delivery by such Guarantor and the Trustee of a supplemental indenture to
\nthis Indenture, the form of which is attached as Exhibit D<\/u> hereto, and
\ndelivery of an Officer153s Certificate.<\/p>\n Section 9.02 With Consent of Holders of Notes<\/u>.<\/p>\n Except as provided below in this Section 9.02, the Issuer and the Trustee may
\namend or supplement this Indenture, the Notes and the Guarantees with the
\nconsent of the Holders of at least a majority in principal amount of the Notes
\n(including Additional Notes, if any) then outstanding voting as a single class
\n(including, without limitation, consents obtained in connection with a tender
\noffer or exchange offer for, or purchase of, the Notes), and, subject to
\nSections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
\nthan a Default or Event of Default in the payment of the principal of, premium
\nand Additional Interest, if any, or interest on the Notes, except a payment
\ndefault resulting from an acceleration that has been rescinded) or compliance
\nwith any provision of this Indenture, the Guarantees or the Notes may be waived
\nwith the consent of the Holders of a majority in principal amount of the then
\noutstanding Notes (including Additional Notes, if any) voting as a single class
\n(including consents obtained in connection with a tender offer or exchange offer
\nfor, or purchase of, the Notes). Section 2.08 and Section 2.09 hereof shall
\ndetermine which Notes are considered to be “outstanding” for the purposes of
\nthis Section 9.02.<\/p>\n Upon the request of the Issuer accompanied by a resolution of its board of
\ndirectors authorizing the execution of any such amended or supplemental
\nindenture, and upon the filing with the Trustee of evidence satisfactory to the
\nTrustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
\nthe Trustee of the documents described in Section 7.02 hereof, the Trustee shall
\njoin with the Issuer in the execution of such amended or supplemental indenture
\nunless such amended or supplemental indenture directly affects the Trustee153s own
\nrights, duties or immunities under this Indenture or otherwise, in which case
\nthe Trustee may in its discretion, but shall not be obligated to, enter into
\nsuch amended or supplemental indenture.<\/p>\n It shall not be necessary for the consent of the Holders of Notes under this
\nSection 9.02 to approve the particular form of any proposed amendment or waiver,
\nbut it shall be sufficient if such consent approves the substance thereof.<\/p>\n After an amendment, supplement or waiver under this Section 9.02 becomes
\neffective, the Issuer shall mail to the Holders of Notes affected thereby a
\nnotice briefly describing the amendment, supplement or waiver. Any failure of
\nthe Issuer to mail such notice, or any defect therein, shall not, however, in
\nany way impair or affect the validity of any such amended or supplemental
\nindenture or waiver.<\/p>\n Without the consent of each affected Holder of Notes, an amendment or waiver
\nunder this Section 9.02 may not (with respect to any Notes held by a
\nnon-consenting Holder):<\/p>\n (1) reduce the principal amount of such Notes whose Holders must consent to
\nan amendment, supplement or waiver;<\/p>\n -95-<\/p>\n
\n(2) reduce the principal of or change the fixed final maturity of any such
\nNote or alter or waive the provisions with respect to the redemption of such
\nNotes (other than provisions relating to Section 3.09, Section 4.10 and Section
\n4.14 hereof to the extent that any such amendment or waiver does not have the
\neffect of reducing the principal of or changing the fixed final maturity of any
\nsuch Note or altering or waiving the provisions with respect to the redemption
\nof such Notes);<\/p>\n (3) reduce the rate of or change the time for payment of interest on any
\nNote;<\/p>\n (4) waive a Default in the payment of principal of or premium, if any, or
\ninterest on the Notes, except a rescission of acceleration of the Notes by the
\nHolders of at least a majority in aggregate principal amount of the Notes and a
\nwaiver of the payment default that resulted from such acceleration, or in
\nrespect of a covenant or provision contained in this Indenture or any Guarantee
\nwhich cannot be amended or modified without the consent of all Holders;<\/p>\n (5) make any Note payable in money other than that stated therein;<\/p>\n (6) make any change in the provisions of this Indenture relating to waivers
\nof past Defaults or the rights of Holders to receive payments of principal of or
\npremium, if any, or interest on the Notes;<\/p>\n (7) make any change in these amendment and waiver provisions;<\/p>\n (8) impair the right of any Holder to receive payment of principal of, or
\ninterest on, such Holder153s Notes on or after the due dates therefor or to
\ninstitute suit for the enforcement of any payment on or with respect to such
\nHolder153s Notes;<\/p>\n (9) make any change to or modify the ranking of the Notes that would
\nadversely affect the Holders; or<\/p>\n (10) except as expressly permitted by this Indenture, modify the Guarantees
\nof any Significant Subsidiary in any manner adverse to the Holders of the Notes.\n<\/p>\n Section 9.03 Compliance with Trust Indenture Act<\/u>.<\/p>\n Every amendment or supplement to this Indenture or the Notes shall be set
\nforth in an amended or supplemental indenture that complies with the Trust
\nIndenture Act as then in effect.<\/p>\n Section 9.04 Revocation and Effect of Consents<\/u>.<\/p>\n Until an amendment, supplement or waiver becomes effective, a consent to it
\nby a Holder of a Note is a continuing consent by the Holder of a Note and every
\nsubsequent Holder of a Note or portion of a Note that evidences the same debt as
\nthe consenting Holder153s Note, even if notation of the consent is not made on any
\nNote. However, any such Holder of a Note or subsequent Holder of a Note may
\nrevoke the consent as to its Note if the Trustee receives written notice of
\nrevocation before the date the waiver, supplement or amendment becomes
\neffective. An amendment, supplement or waiver becomes effective in accordance
\nwith its terms and thereafter binds every Holder.<\/p>\n The Issuer may, but shall not be obligated to, fix a record date for the
\npurpose of determining the Holders entitled to consent to any amendment,
\nsupplement or waiver. If a record date is fixed, then, notwithstanding the
\npreceding paragraph, those Persons who were Holders at such record date (or
\ntheir duly designated proxies), and only such Persons, shall be entitled to
\nconsent to such amendment, supplement, or waiver or to revoke any consent
\npreviously given, whether or not such Persons continue to be Holders after such
\nrecord date. No such consent shall be valid or effective for more than 120 days
\nafter such record date unless the consent of the requisite number of Holders has
\nbeen obtained.<\/p>\n -96-<\/p>\n
\nSection 9.05 Notation on or Exchange of Notes<\/u>.<\/p>\n The Trustee may place an appropriate notation about an amendment, supplement
\nor waiver on any Note thereafter authenticated. The Issuer in exchange for all
\nNotes may issue and the Trustee shall, upon receipt of an Authentication Order,
\nauthenticate new Notes that reflect the amendment, supplement or waiver.<\/p>\n Failure to make the appropriate notation or issue a new Note shall not affect
\nthe validity and effect of such amendment, supplement or waiver.<\/p>\n Section 9.06 Trustee to Sign Amendments, Etc<\/u>.<\/p>\n The Trustee shall sign any amendment, supplement or waiver authorized
\npursuant to this Article 9 if the amendment or supplement does not adversely
\naffect the rights, duties, liabilities or immunities of the Trustee. The Issuer
\nmay not sign an amendment, supplement or waiver until the board of directors
\napproves it. In executing any amendment, supplement or waiver, the Trustee shall
\nbe entitled to receive and (subject to Section 7.01 hereof) shall be fully
\nprotected in relying upon, in addition to the documents required by Section
\n12.04 hereof, an Officer153s Certificate and an Opinion of Counsel stating that
\nthe execution of such amended or supplemental indenture is authorized or
\npermitted by this Indenture and that such amendment, supplement or waiver is the
\nlegal, valid and binding obligation of the Issuer and any Guarantors party
\nthereto, enforceable against them in accordance with its terms, subject to
\ncustomary exceptions, and complies with the provisions hereof (including Section
\n9.03). Notwithstanding the foregoing, no Opinion of Counsel will be required for
\nthe Trustee to execute any amendment or supplement adding a new Guarantor under
\nthis Indenture.<\/p>\n Section 9.07 Payment for Consent<\/u>.<\/p>\n Neither the Issuer nor any Affiliate of the Issuer shall, directly or
\nindirectly, pay or cause to be paid any consideration, whether by way of
\ninterest, fee or otherwise, to any Holder for or as an inducement to any
\nconsent, waiver or amendment of any of the terms or provisions of this Indenture
\nor the Notes unless such consideration is offered to all Holders and is paid to
\nall Holders that so consent, waive or agree to amend in the time frame set forth
\nin solicitation documents relating to such consent, waiver or agreement.<\/p>\n ARTICLE 10<\/p>\n GUARANTEES<\/p>\n Section 10.01 Guarantee<\/u>.<\/p>\n Subject to this Article 10, from and after the consummation of the
\nAcquisition, each of the Guarantors hereby, jointly and severally,
\nunconditionally guarantees to each Holder of a Note authenticated and delivered
\nby the Trustee and to the Trustee and its successors and assigns, irrespective
\nof the validity and enforceability of this Indenture, the Notes or the
\nobligations of the Issuer hereunder or thereunder, that: (a) the principal of,
\ninterest, premium and Additional Interest, if any, on the Notes shall be
\npromptly paid in full when due, whether at maturity, by acceleration, redemption
\nor otherwise, and interest on the overdue principal of and interest on the
\nNotes, if any, if lawful, and all other obligations of the Issuer to the Holders
\nor the Trustee hereunder or thereunder shall be promptly paid in full or
\nperformed, all in accordance with the terms hereof and thereof; and (b) in case
\nof any extension of time of payment or renewal of any Notes or any of such other
\nobligations, that same shall be promptly paid in full when due or performed in
\naccordance with the terms of the extension or renewal, whether at stated
\nmaturity, by acceleration or otherwise. Failing payment when due of any amount
\nso guaranteed or any performance so guaranteed for whatever reason, the
\nGuarantors shall be jointly and severally obligated to pay the same immediately.
\nEach Guarantor agrees that this is a guarantee of payment and not a guarantee of
\ncollection.<\/p>\n -97-<\/p>\n
\nThe Guarantors hereby agree that their obligations hereunder shall be
\nunconditional, irrespective of the validity, regularity or enforceability of the
\nNotes or this Indenture, the absence of any action to enforce the same, any
\nwaiver or consent by any Holder of the Notes with respect to any provisions
\nhereof or thereof, the recovery of any judgment against the Issuer, any action
\nto enforce the same or any other circumstance which might otherwise constitute a
\nlegal or equitable discharge or defense of a guarantor. Each Guarantor hereby
\nwaives diligence, presentment, demand of payment, filing of claims with a court
\nin the event of insolvency or bankruptcy of the Issuer, any right to require a
\nproceeding first against the Issuer, protest, notice and all demands whatsoever
\nand covenants that this Guarantee shall not be discharged except by complete
\nperformance of the obligations contained in the Notes and this Indenture.<\/p>\n Each Guarantor also agrees to pay any and all costs and expenses (including
\nreasonable attorneys153 fees) incurred by the Trustee or any Holder in enforcing
\nany rights under this Section 10.01.<\/p>\n If any Holder or the Trustee is required by any court or otherwise to return
\nto the Issuer, the Guarantors or any custodian, trustee, liquidator or other
\nsimilar official acting in relation to either the Issuer or the Guarantors, any
\namount paid either to the Trustee or such Holder, this Guarantee, to the extent
\ntheretofore discharged, shall be reinstated in full force and effect.<\/p>\n Each Guarantor agrees that it shall not be entitled to any right of
\nsubrogation in relation to the Holders in respect of any obligations guaranteed
\nhereby until payment in full of all obligations guaranteed hereby. Each
\nGuarantor further agrees that, as between the Guarantors, on the one hand, and
\nthe Holders and the Trustee, on the other hand, (x) the maturity of the
\nobligations guaranteed hereby may be accelerated as provided in Article 6 hereof
\nfor the purposes of this Guarantee, notwithstanding any stay, injunction or
\nother prohibition preventing such acceleration in respect of the obligations
\nguaranteed hereby, and (y) in the event of any declaration of acceleration of
\nsuch obligations as provided in Article 6 hereof, such obligations (whether or
\nnot due and payable) shall forthwith become due and payable by the Guarantors
\nfor the purpose of this Guarantee. The Guarantors shall have the right to seek
\ncontribution from any non-paying Guarantor so long as the exercise of such right
\ndoes not impair the rights of the Holders under the Guarantees.<\/p>\n Each Guarantee shall remain in full force and effect and continue to be
\neffective should any petition be filed by or against the Issuer for liquidation
\nor reorganization, should the Issuer become insolvent or make an assignment for
\nthe benefit of creditors or should a receiver or trustee be appointed for all or
\nany significant part of the Issuer153s assets, and shall, to the fullest extent
\npermitted by law, continue to be effective or be reinstated, as the case may be,
\nif at any time payment and performance of the Notes are, pursuant to applicable
\nlaw, rescinded or reduced in amount, or must otherwise be restored or returned
\nby any obligee on the Notes or Guarantees, whether as a “voidable preference,”
\n“fraudulent transfer” or otherwise, all as though such payment or performance
\nhad not been made. In the event that any payment, or any part thereof, is
\nrescinded, reduced, restored or returned, the Notes shall, to the fullest extent
\npermitted by law, be reinstated and deemed reduced only by such amount paid and
\nnot so rescinded, reduced, restored or returned.<\/p>\n -98-<\/p>\n
\nIn case any provision of any Guarantee shall be invalid, illegal or
\nunenforceable, the validity, legality, and enforceability of the remaining
\nprovisions shall not in any way be affected or impaired thereby.<\/p>\n The Guarantee issued by any Guarantor shall be a general unsecured senior
\nobligation of such Guarantor and shall be pari passu<\/u> in right of payment
\nwith all existing and future Senior Indebtedness of such Guarantor, if any.<\/p>\n Each payment to be made by a Guarantor in respect of its Guarantee shall be
\nmade without set-off, counterclaim, reduction or diminution of any kind or
\nnature.<\/p>\n Section 10.02 Limitation on Guarantor Liability<\/u>.<\/p>\n Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms
\nthat it is the intention of all such parties that the Guarantee of such
\nGuarantor not constitute a fraudulent transfer or conveyance for purposes of
\nBankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
\nTransfer Act or any similar federal or state law to the extent applicable to any
\nGuarantee. To effectuate the foregoing intention, the Trustee, the Holders and
\nthe Guarantors hereby irrevocably agree that the obligations of each Guarantor
\nshall be limited to the maximum amount as will, after giving effect to such
\nmaximum amount and all other contingent and fixed liabilities of such Guarantor
\nthat are relevant under such laws and after giving effect to any collections
\nfrom, rights to receive contribution from or payments made by or on behalf of
\nany other Guarantor in respect of the obligations of such other Guarantor under
\nthis Article 10, result in the obligations of such Guarantor under its Guarantee
\nnot constituting a fraudulent conveyance or fraudulent transfer under applicable
\nlaw. Each Guarantor that makes a payment under its Guarantee shall be entitled
\nupon payment in full of all guaranteed obligations under this Indenture to a
\ncontribution from each other Guarantor in an amount equal to such other
\nGuarantor153s pro<\/u> rata<\/u> portion of such payment based on the
\nrespective net assets of all the Guarantors at the time of such payment
\ndetermined in accordance with GAAP.<\/p>\n Section 10.03 Execution and Delivery<\/u>.<\/p>\n To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor
\nhereby agrees that this Indenture shall be executed on behalf of such Guarantor
\nby its President, one of its Vice Presidents or one of its Assistant Vice
\nPresidents.<\/p>\n Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01
\nhereof shall remain in full force and effect notwithstanding the absence of the
\nendorsement of any notation of such Guarantee on the Notes.<\/p>\n If an Officer whose signature is on this Indenture no longer holds that
\noffice at the time the Trustee authenticates the Note, the Guarantee shall be
\nvalid nevertheless.<\/p>\n The delivery of any Note by the Trustee, after the authentication thereof
\nhereunder, shall constitute due delivery of the Guarantee set forth in this
\nIndenture on behalf of the Guarantors.<\/p>\n If required by Section 4.15 hereof, the Issuer shall cause any newly created
\nor acquired Restricted Subsidiary to comply with the provisions of Section 4.15
\nhereof and this Article 10, to the extent applicable.<\/p>\n -99-<\/p>\n
\nSection 10.04 Subrogation<\/u>.<\/p>\n Each Guarantor shall be subrogated to all rights of Holders of Notes against
\nthe Issuer in respect of any amounts paid by any Guarantor pursuant to the
\nprovisions of Section 10.01 hereof; provided<\/u> that, if an Event of Default
\nhas occurred and is continuing, no Guarantor shall be entitled to enforce or
\nreceive any payments arising out of, or based upon, such right of subrogation
\nuntil all amounts then due and payable by the Issuer under this Indenture or the
\nNotes shall have been paid in full.<\/p>\n Section 10.05 Benefits Acknowledged<\/u>.<\/p>\n Each Guarantor acknowledges that it will receive direct and indirect benefits
\nfrom the financing arrangements contemplated by this Indenture and that the
\nguarantee and waivers made by it pursuant to its Guarantee are knowingly made in
\ncontemplation of such benefits.<\/p>\n Section 10.06 Release of Guarantees<\/u>.<\/p>\n A Guarantee by a Guarantor shall be automatically and unconditionally
\nreleased and discharged, and no further action by such Guarantor, the Issuer or
\nthe Trustee is required for the release of such Guarantor153s Guarantee, upon:\n<\/p>\n (1)(A) any sale, exchange or transfer (by merger or otherwise) of the Capital
\nStock of such Guarantor (including any sale, exchange or transfer), after which
\nthe applicable Guarantor is no longer a Restricted Subsidiary or all or
\nsubstantially all the assets of such Guarantor which sale, exchange or transfer
\nis made in compliance with the applicable provisions of this Indenture;<\/p>\n (B) the release or discharge of the guarantee by such Guarantor of the Senior
\nCredit Facilities or the guarantee which resulted in the creation of such
\nGuarantee, except a discharge or release by or as a result of payment under such
\nguarantee;<\/p>\n (C) the proper designation of any Restricted Subsidiary that is a Guarantor
\nas an Unrestricted Subsidiary; or<\/p>\n (D) the Issuer exercising its Legal Defeasance option or Covenant Defeasance
\noption in accordance with Article 8 hereof or the Issuer153s obligations under
\nthis Indenture being discharged in accordance with the terms of this Indenture;
\nand<\/p>\n (2) such Guarantor delivering to the Trustee an Officer153s Certificate and an
\nOpinion of Counsel, each stating that all conditions precedent provided for in
\nthis Indenture relating to such transaction have been complied with.<\/p>\n -100-<\/p>\n
\nARTICLE 11<\/p>\n SATISFACTION AND DISCHARGE<\/p>\n Section 11.01 Satisfaction and Discharge<\/u>.<\/p>\n This Indenture shall be discharged and shall cease to be of further effect as
\nto all Notes, when either:<\/p>\n (1) all Notes theretofore authenticated and delivered, except lost, stolen or
\ndestroyed Notes which have been replaced or paid and Notes for whose payment
\nmoney has theretofore been deposited in trust, have been delivered to the
\nTrustee for cancellation; or<\/p>\n (2)(A) all Notes not theretofore delivered to the Trustee for cancellation
\nhave become due and payable by reason of the making of a notice of redemption or
\notherwise, shall become due and payable within one year or are to be called for
\nredemption within one year under arrangements satisfactory to the Trustee for
\nthe giving of notice of redemption by the Trustee in the name, and at the
\nexpense, of the Issuer and the Issuer or any Guarantor has irrevocably deposited
\nor caused to be deposited with the Trustee as trust funds in trust solely for
\nthe benefit of the Holders of the Notes, cash in U.S. dollars, Government
\nSecurities, or a combination thereof, in such amounts as will be sufficient
\nwithout consideration of any reinvestment of interest to pay and discharge the
\nentire indebtedness on the Notes not theretofore delivered to the Trustee for
\ncancellation for principal, premium, if any, and accrued interest to the date of
\nmaturity or redemption;<\/p>\n (B) no Default (other than that resulting from borrowing funds to be applied
\nto make such deposit and any similar and simultaneous deposit relating to other
\nIndebtedness and, in each case, the granting of Liens in connection therewith)
\nwith respect to this Indenture or the Notes shall have occurred and be
\ncontinuing on the date of such deposit or shall occur as a result of such
\ndeposit and such deposit will not result in a breach or violation of, or
\nconstitute a default under, the Senior Credit Facilities or any other material
\nagreement or instrument (other than this Indenture) to which the Issuer or any
\nGuarantor is a party or by which the Issuer or any Guarantor is bound (other
\nthan that resulting from borrowing funds to be applied to make such deposit and
\nany similar and simultaneous deposit relating to other Indebtedness and, in each
\ncase, the granting of Liens in connection therewith);<\/p>\n (C) the Issuer has paid or caused to be paid all sums payable by it under
\nthis Indenture; and<\/p>\n (D) the Issuer has delivered irrevocable instructions to the Trustee to apply
\nthe deposited money toward the payment of the Notes at maturity or the
\nredemption date, as the case may be.<\/p>\n In addition, the Issuer must deliver an Officer153s Certificate and an Opinion
\nof Counsel to the Trustee stating that all conditions precedent to satisfaction
\nand discharge have been satisfied.<\/p>\n Notwithstanding the satisfaction and discharge of this Indenture, if money
\nshall have been deposited with the Trustee pursuant to subclause (A) of clause
\n(2) of this Section 11.01, the provisions of Section 11.02 and Section 8.06
\nhereof shall survive.<\/p>\n -101-<\/p>\n
\nSection 11.02 Application of Trust Money<\/u>.<\/p>\n Subject to the provisions of Section 8.06 hereof, all money deposited with
\nthe Trustee pursuant to Section 11.01 hereof shall be held in trust and applied
\nby it, in accordance with the provisions of the Notes and this Indenture, to the
\npayment, either directly or through any Paying Agent (including the Issuer
\nacting as its own Paying Agent) as the Trustee may determine, to the Persons
\nentitled thereto, of the principal (and premium and Additional Interest, if any)
\nand interest for whose payment such money has been deposited with the Trustee;
\nbut such money need not be segregated from other funds except to the extent
\nrequired by law.<\/p>\n If the Trustee or Paying Agent is unable to apply any money or Government
\nSecurities in accordance with Section 11.01 hereof by reason of any legal
\nproceeding or by reason of any order or judgment of any court or governmental
\nauthority enjoining, restraining or otherwise prohibiting such application, the
\nIssuer153s and any Guarantor153s obligations under this Indenture and the Notes
\nshall be revived and reinstated as though no deposit had occurred pursuant to
\nSection 11.01 hereof; provided<\/u> that if the Issuer has made any payment of
\nprincipal of, premium and Additional Interest, if any, or interest on any Notes
\nbecause of the reinstatement of its obligations, the Issuer shall be subrogated
\nto the rights of the Holders of such Notes to receive such payment from the
\nmoney or Government Securities held by the Trustee or Paying Agent.<\/p>\n ARTICLE 12<\/p>\n MISCELLANEOUS<\/p>\n Section 12.01 Trust Indenture Act Controls<\/u>.<\/p>\n If any provision of this Indenture limits, qualifies or conflicts with the
\nduties imposed by Trust Indenture Act Section 318(c), the imposed duties shall
\ncontrol.<\/p>\n Section 12.02 Notices<\/u>.<\/p>\n Any notice or communication by the Issuer, any Guarantor or the Trustee to
\nthe others is duly given if in writing and delivered in person or mailed by
\nfirst-class mail (registered or certified, return receipt requested), fax or
\novernight air courier guaranteeing next day delivery, to the others153 address:\n<\/p>\n If to the Issuer and\/or any Guarantor:<\/p>\n c\/o Interactive Data Corporation<\/p>\n 32 Crosby Drive<\/p>\n Bedford, Massachusetts 01730<\/p>\n Fax No.: (781) 687-8005<\/p>\n Attention: General Counsel<\/p>\n If to the Trustee:<\/p>\n The Bank of New York Mellon Trust Company, N.A.<\/p>\n 525 William Penn Place, 38th Floor<\/p>\n Pittsburgh, PA 15259<\/p>\n Fax No.: (412) 234-7535<\/p>\n Attention: Corporate Trust Administration : IDC<\/p>\n -102-<\/p>\n
\nThe Issuer, any Guarantor or the Trustee, by notice to the others, may
\ndesignate additional or different addresses for subsequent notices or
\ncommunications.<\/p>\n All notices and communications (other than those sent to Holders) shall be
\ndeemed to have been duly given: at the time delivered by hand, if personally
\ndelivered; five calendar days after being deposited in the mail, postage
\nprepaid, if mailed by first-class mail; when receipt acknowledged, if faxed; and
\nthe next Business Day after timely delivery to the courier, if sent by overnight
\nair courier guaranteeing next day delivery; provided<\/u> that any notice or
\ncommunication delivered to the Trustee shall be deemed effective upon actual
\nreceipt thereof.<\/p>\n Any notice or communication to a Holder shall be mailed by first-class mail,
\ncertified or registered, return receipt requested, or by overnight air courier
\nguaranteeing next day delivery to its address shown on the register kept by the
\nRegistrar. Any notice or communication shall also be so mailed to any Person
\ndescribed in Trust Indenture Act Section 313(c), to the extent required by the
\nTrust Indenture Act. Failure to mail a notice or communication to a Holder or
\nany defect in it shall not affect its sufficiency with respect to other Holders.\n<\/p>\n If a notice or communication is mailed in the manner provided above within
\nthe time prescribed, it is duly given, whether or not the addressee receives it.\n<\/p>\n If the Issuer mails a notice or communication to Holders, it shall mail a
\ncopy to the Trustee and each Agent at the same time.<\/p>\n Section 12.03 Communication by Holders of Notes with Other Holders of
\nNotes<\/u>.<\/p>\n Holders may communicate pursuant to Trust Indenture Act Section 312(b) with
\nother Holders with respect to their rights under this Indenture or the Notes.
\nThe Issuer, the Trustee, the Registrar and anyone else shall have the protection
\nof Trust Indenture Act Section 312(c).<\/p>\n Section 12.04 Certificate and Opinion as to Conditions Precedent<\/u>.<\/p>\n Upon any request or application by the Issuer or any of the Guarantors to the
\nTrustee to take any action under this Indenture, the Issuer or such Guarantor,
\nas the case may be, shall furnish to the Trustee:<\/p>\n (a) An Officer153s Certificate in form and substance reasonably satisfactory to
\nthe Trustee (which shall include the statements set forth in Section 12.05
\nhereof) stating that, in the opinion of the signers, all conditions precedent
\nand covenants, if any, provided for in this Indenture relating to the proposed
\naction have been satisfied; and<\/p>\n (b) An Opinion of Counsel in form and substance reasonably satisfactory to
\nthe Trustee (which shall include the statements set forth in Section 12.05
\nhereof) stating that, in the opinion of such counsel, all such conditions
\nprecedent and covenants have been satisfied.<\/p>\n Section 12.05 Statements Required in Certificate or Opinion<\/u>.<\/p>\n Each certificate or opinion with respect to compliance with a condition or
\ncovenant provided for in this Indenture (other than a certificate provided
\npursuant to Section 4.04 hereof or Trust Indenture Act Section 314(a)(4)) shall
\ncomply with the provisions of Trust Indenture Act Section 314(e) and shall
\ninclude:<\/p>\n -103-<\/p>\n
\n(a) a statement that the Person making such certificate or opinion has read
\nsuch covenant or condition;<\/p>\n (b) a brief statement as to the nature and scope of the examination or
\ninvestigation upon which the statements or opinions contained in such
\ncertificate or opinion are based;<\/p>\n (c) a statement that, in the opinion of such Person, he or she has made such
\nexamination or investigation as is necessary to enable him to express an
\ninformed opinion as to whether or not such covenant or condition has been
\ncomplied with (and, in the case of an Opinion of Counsel, may be limited to
\nreliance on an Officer153s Certificate as to matters of fact); and<\/p>\n (d) a statement as to whether or not, in the opinion of such Person, such
\ncondition or covenant has been complied with.<\/p>\n Section12.06 Rules by Trustee and Agents<\/u>.<\/p>\n The Trustee may make reasonable rules for action by or at a meeting of
\nHolders. The Registrar or Paying Agent may make reasonable rules and set
\nreasonable requirements for its functions.<\/p>\n Section 12.07 No Personal Liability of Directors, Officers, Employees and
\nStockholders<\/u>.<\/p>\n No director, officer, employee, incorporator or stockholder of the Issuer or
\nany Guarantor or any of their parent companies shall have any liability for any
\nobligations of the Issuer or the Guarantors under the Notes, the Guarantees or
\nthis Indenture or for any claim based on, in respect of, or by reason of such
\nobligations or their creation. Each Holder by accepting Notes waives and
\nreleases all such liability. The waiver and release are part of the
\nconsideration for issuance of the Notes.<\/p>\n Section 12.08 Governing Law<\/u>.<\/p>\n THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED
\nIN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.<\/p>\n Section 12.09 Waiver of Jury Trial<\/u>.<\/p>\n EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,
\nTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
\nJURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
\nNOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n Section 12.10 Force Majeure<\/u>.<\/p>\n In no event shall the Trustee be responsible or liable for any failure or
\ndelay in the performance of its obligations under this Indenture arising out of
\nor caused by, directly or indirectly, forces beyond its reasonable control,
\nincluding without limitation strikes, work stoppages, accidents, acts of war or
\nterrorism, civil or military disturbances, nuclear or natural catastrophes or
\nacts of God, and interruptions, loss or malfunctions of utilities,
\ncommunications or computer (software or hardware) services.<\/p>\n -104-<\/p>\n
\nSection 12.11 No Adverse Interpretation of Other Agreements<\/u>.<\/p>\n This Indenture may not be used to interpret any other indenture, loan or debt
\nagreement of the Issuer or its Restricted Subsidiaries or of any other Person.
\nAny such indenture, loan or debt agreement may not be used to interpret this
\nIndenture.<\/p>\n Section 12.12 Successors<\/u>.<\/p>\n All agreements of the Issuer in this Indenture and the Notes shall bind its
\nsuccessors. All agreements of the Trustee in this Indenture shall bind its
\nsuccessors. All agreements of each Guarantor in this Indenture shall bind its
\nsuccessors, except as otherwise provided in Section 10.05 hereof.<\/p>\n Section 12.13 Severability.<\/u><\/p>\n In case any provision in this Indenture or in the Notes shall be invalid,
\nillegal or unenforceable, the validity, legality and enforceability of the
\nremaining provisions shall not in any way be affected or impaired thereby.<\/p>\n Section 12.14 Counterpart Originals<\/u>.<\/p>\n The parties may sign any number of copies of this Indenture. Each signed copy
\nshall be an original, but all of them together represent the same agreement.\n<\/p>\n Section 12.15 Table of Contents, Headings, Etc<\/u>.<\/p>\n The Table of Contents, Cross-Reference Table and headings of the Articles and
\nSections of this Indenture have been inserted for convenience of reference only,
\nare not to be considered a part of this Indenture and shall in no way modify or
\nrestrict any of the terms or provisions hereof.<\/p>\n Section 12.16 Qualification of Indenture<\/u>.<\/p>\n The Issuer and the Guarantors shall qualify this Indenture under the Trust
\nIndenture Act in accordance with the terms and conditions of the Registration
\nRights Agreement and shall pay all reasonable costs and expenses (including
\nattorneys153 fees and expenses for the Issuer, the Guarantors and the Trustee)
\nincurred in connection therewith, including, but not limited to, costs and
\nexpenses of qualification of this Indenture and the Notes and printing this
\nIndenture and the Notes. The Trustee shall be entitled to receive from the
\nIssuer and the Guarantors any such Officer153s Certificates, Opinions of Counsel
\nor other documentation as it may reasonably request in connection with any such
\nqualification of this Indenture under the Trust Indenture Act.<\/p>\n [Signatures on following page]<\/p>\n -105-<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n IGLOO MERGER CORPORATION<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | \n \/s\/ MICHAEL BINGLE<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Michael Bingle<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Co-President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| \n INTERACTIVE DATA CORPORATION<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | \n \/s\/ RAYMOND L. D153ARCY<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Raymond L. D153arcy<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: President and Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to Senior Indenture – 1<\/p>\n
\nESIGNAL, INC.<\/p>\n EXSHARE FINANCIAL INCORPORATED<\/p>\n GTIS CORPORATION<\/p>\n IDCO NOMINEES, INC.<\/p>\n INFOTEC HOLDINGS CORPORATION<\/p>\n INTERACTIVE DATA MANAGED SOLUTIONS, LLC<\/p>\n INTERACTIVE DATA PRICING AND REFERENCE DATA, INC.<\/p>\n INTERACTIVE DATA REAL-TIME GROUP, INC.<\/p>\n INTERACTIVE DATA REAL-TIME SERVICES, INC.<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [EACH GUARANTOR]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | \n \/s\/ CHRISTINE A. SAMPSON<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Christine A. Sampson<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Treasurer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to Senior Indenture – 2<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,<\/p>\n<\/td>\n<\/tr>\n | \n| \n as Trustee<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | \n \/s\/ LESLIE LOCKHART<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Leslie Lockhart<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Senior Associate<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Signature Page to Senior Indenture – 3<\/p>\n
\nEXHIBIT A<\/p>\n [Face of Note]<\/p>\n [Insert the Global Note Legend, if applicable pursuant to the provisions of
\nthe Indenture]<\/p>\n [Insert the Private Placement Legend, if applicable pursuant to the
\nprovisions of the Indenture]<\/p>\n [Insert the Regulation S Temporary Global Note Legend, if applicable pursuant
\nto the provisions of the Indenture]<\/p>\n A-1<\/p>\n
\nCUSIP [ ]<\/p>\n ISIN [ ]1<\/sup><\/p>\n[[RULE 144A][REGULATION S] GLOBAL NOTE<\/p>\n representing up to<\/p>\n $ <\/u>]<\/p>\n 10.25% Senior Notes due 2018<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n No.<\/p>\n<\/td>\n | <\/td>\n | \n [$ <\/u>]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n IGLOO MERGER CORPORATION<\/p>\n promises to pay to CEDE & CO. or registered assigns, the principal sum
\n[set forth on the Schedule of Exchanges of Interests in the Global Note attached
\nhereto] [of United States Dollars] on August 1, 2018.<\/p>\n Interest Payment Dates: February 1 and August 1<\/p>\n Record Dates: January 15 and July 15<\/p>\n \n\n\n| \n 1<\/sup><\/p>\n<\/td>\n| \n Rule 144A Note CUSIP: [ ]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n Rule 144A Note ISIN: [ ]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n Regulation S Note CUSIP: [ ]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n Regulation S Note ISIN: [ ]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n Exchange Note CUSIP: [ ]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| <\/td>\n | \n Exchange Note ISIN: [ ]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n A-2<\/p>\n
\nIN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.\n<\/p>\n Dated:<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n IGLOO MERGER CORPORATION<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n A-3<\/p>\n
\nThis is one of the Notes referred to in the within-mentioned Indenture:<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n THE BANK OF NEW YORK MELLON<\/p>\n TRUST COMPANY, N.A.,<\/p>\n as Trustee<\/p>\n<\/td>\n<\/tr>\n | \n| \n Dated:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Authorized Signatory<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n A-4<\/p>\n
\n[Back of Note]<\/p>\n 10.25% Senior Notes due 2013<\/p>\n Capitalized terms used herein shall have the meanings assigned to them in the
\nIndenture referred to below unless otherwise indicated.<\/p>\n 1. INTEREST. Igloo Merger Corporation, a Delaware corporation, promises to
\npay interest on the principal amount of this Note at 10.25% per annum from July
\n29, 2010 until maturity and shall pay the Additional Interest, if any, payable
\npursuant to the Registration Rights Agreement referred to below. Upon
\nconsummation of the Transaction, Interactive Data Corporation will assume the
\nobligations of Igloo Merger Corporation under this Note. The Issuer will pay
\ninterest and Additional Interest, if any, semi-annually in arrears on February 1
\nand August 1 of each year, or if any such day is not a Business Day, on the next
\nsucceeding Business Day (each, an “Interest Payment Date<\/u>“). Interest on
\nthe Notes will accrue from the most recent date to which interest has been paid
\nor, if no interest has been paid, from the date of issuance; provided<\/u>
\nthat the first Interest Payment Date shall be February 1, 2011. The Issuer will
\npay interest (including post-petition interest in any proceeding under any
\nBankruptcy Law) on overdue principal and premium, if any, from time to time on
\ndemand at the interest rate on the Notes; it shall pay interest (including
\npost-petition interest in any proceeding under any Bankruptcy Law) on overdue
\ninstallments of interest and Additional Interest, if any, (without regard to any
\napplicable grace periods) from time to time on demand at the interest rate on
\nthe Notes. Interest will be computed on the basis of a 360-day year comprised of
\ntwelve 30-day months.<\/p>\n 2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes and
\nAdditional Interest, if any, to the Persons who are registered Holders of Notes
\nat the close of business on the January 15 or July 15 (whether or not a Business
\nDay), as the case may be, next preceding the Interest Payment Date, even if such
\nNotes are canceled after such record date and on or before such Interest Payment
\nDate, except as provided in Section 2.12 of the Indenture with respect to
\ndefaulted interest. Payment of interest and Additional Interest, if any, may be
\nmade by check mailed to the Holders at their addresses set forth in the register
\nof Holders, provided<\/u> that payment by wire transfer of immediately
\navailable funds will be required with respect to principal of and interest,
\npremium and Additional Interest, if any, on, all Global Notes and all other
\nNotes the Holders of which shall have provided wire transfer instructions to the
\nIssuer or the Paying Agent. Such payment shall be in such coin or currency of
\nthe United States of America as at the time of payment is legal tender for
\npayment of public and private debts.<\/p>\n 3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon Trust
\nCompany, N.A., the Trustee under the Indenture, will act as Paying Agent and
\nRegistrar. The Issuer may change any Paying Agent or Registrar without notice to
\nthe Holders. The Issuer or any of its Subsidiaries may act in any such capacity.\n<\/p>\n 4. INDENTURE. The Issuer issued the Notes under an Indenture, dated as of
\nJuly 29, 2010 (the “Indenture<\/u>“), among Igloo Merger Corporation,
\nInteractive Data Corporation, the Guarantors named therein and the Trustee. This
\nNote is one of a duly authorized issue of notes of the Issuer designated as its
\n10.25% senior notes due 2018. The Issuer shall be entitled to issue Additional
\nNotes pursuant to Section 2.01 and 4.09 of the Indenture. The terms of the Notes
\ninclude those stated in the Indenture and those made part of the Indenture by
\nreference to the Trust Indenture Act of 1939, as amended (the “Trust
\nIndenture Act<\/u>“). The Notes are subject to all such terms, and Holders are
\nreferred to the Indenture and such Act for a statement of such terms. To the
\nextent any provision of this Note conflicts with the express provisions of the
\nIndenture, the provisions of the Indenture shall govern and be controlling.<\/p>\n A-5<\/p>\n
\n5. OPTIONAL REDEMPTION.<\/p>\n (a) Except as described below under clauses 5(b) and 5(d) hereof, the Notes
\nwill not be redeemable at the Issuer153s option before August 1, 2014.<\/p>\n (b) At any time prior to August 1, 2014, the Issuer may redeem all or a part
\nof the Notes, upon not less than 30 nor more than 60 days153 prior notice mailed
\nby first-class mail to the registered address of each Holder of Notes or
\notherwise in accordance with the procedures of DTC, at a redemption price equal
\nto 100% of the principal amount of the Notes redeemed, plus the Applicable
\nPremium as of, and accrued and unpaid interest and Additional Interest, if any,
\nto the date of redemption (the “Redemption Date<\/u>“), subject to the rights
\nof Holders of Notes on the relevant Record Date to receive interest due on the
\nrelevant Interest Payment Date.<\/p>\n (c) On and after August 1, 2014, the Issuer may redeem the Notes in whole or
\nin part upon notice as described under Section 3.01 of the Indenture at the
\nredemption prices (expressed as percentages of principal amount of the Notes to
\nbe redeemed) set forth below, plus accrued and unpaid interest thereon and
\nAdditional Interest, if any, to the applicable Redemption Date, subject to the
\nright of Holders of Notes of record on the relevant Record Date to receive
\ninterest due on the relevant Interest Payment Date, if redeemed during the
\ntwelve-month period beginning on August 1 of each of the years indicated below:\n<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Year<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Percentage<\/strong><\/p>\n<\/td>\n| <\/td>\n<\/tr>\n | \n| \n 2014<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 105.125<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n 2015<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 102.563<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n 2016 and thereafter<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 100.000<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (d) Prior to August 1, 2013, the Issuer may, at its option, on one or more
\noccasions, redeem up to 35% of the aggregate principal amount of Notes at a
\nredemption price equal to 110.250% of the aggregate principal amount thereof,
\nplus accrued and unpaid interest thereon and Additional Interest, if any, to the
\napplicable Redemption Date, subject to the right of Holders of Notes of record
\non the relevant Record Date to receive interest due on the relevant Interest
\nPayment Date, with the net cash proceeds of one or more Equity Offerings;
\nprovided<\/u> that at least 50% of the sum of the aggregate principal amount
\nof Notes originally issued under the Indenture and original principal amount of
\nany Additional Notes that are Notes issued under the Indenture after the Issue
\nDate remains outstanding immediately after the occurrence of each such
\nredemption; provided<\/u>, further<\/u>, that each such redemption occurs
\nwithin 90 days of the date of closing of each such Equity Offering.<\/p>\n (e) Any notice of any redemption may be given prior to the redemption
\nthereof, and any such redemption or notice may, at the Issuer153s discretion, be
\nsubject to one or more conditions precedent, including, but not limited to,
\ncompletion of an Equity Offering or other corporate transaction.<\/p>\n (f) Any redemption pursuant to this paragraph 5 shall be made pursuant to the
\nprovisions of Sections 3.01 through 3.06 of the Indenture.<\/p>\n 6. MANDATORY REDEMPTION. The Issuer shall not be required to make any
\nmandatory redemption or sinking fund payments with respect to the Notes.<\/p>\n A-6<\/p>\n
\n7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of
\nredemption will be mailed by first-class mail at least 30 days but not more than
\n60 days before the redemption date (except that redemption notices may be mailed
\nmore than 60 days prior to a redemption date if the notice is issued in
\nconnection with Article 8 or Article 11 of the Indenture) to each Holder whose
\nNotes are to be redeemed at its registered address. Notes in denominations
\nlarger than $2,000 may be redeemed in part but only in whole multiples of
\n$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
\nafter the redemption date interest ceases to accrue on Notes or portions thereof
\ncalled for redemption.<\/p>\n 8. OFFERS TO REPURCHASE.<\/p>\n (a) Upon the occurrence of a Change of Control, the Issuer shall make an
\noffer (a “Change of Control Offer<\/u>“) to each Holder to repurchase all or
\nany part (equal to $2,000 or an integral multiple of $1,000 in excess thereof)
\nof each Holder153s Notes at a purchase price equal to 101% of the aggregate
\nprincipal amount thereof plus accrued and unpaid interest and Additional
\nInterest thereon, if any, to the date of purchase (the “Change of Control
\nPayment<\/u>“). The Change of Control Offer shall be made in accordance with
\nSection 4.14 of the Indenture.<\/p>\n (b) If the Issuer or any of its Restricted Subsidiaries consummates an Asset
\nSale, within 10 Business Days of each date that Excess Proceeds exceed $25.0
\nmillion, the Issuer shall commence, an offer to all Holders of the Notes and, if
\nrequired by the terms of any Indebtedness that is pari passu<\/u> with the
\nNotes (“Pari Passu Indebtedness<\/u>“), to the holders of such Pari Passu
\nIndebtedness (an “Asset Sale Offer<\/u>“), to purchase the maximum principal
\namount of Notes (including any Additional Notes) and such other Pari Passu
\nIndebtedness that may be purchased out of the Excess Proceeds at an offer price
\nin cash in an amount equal to 100% of the principal amount thereof plus accrued
\nand unpaid interest and Additional Interest thereon, if any, to the date fixed
\nfor the closing of such offer, in accordance with the procedures set forth in
\nthe Indenture. To the extent that the aggregate amount Notes (including any
\nAdditional Notes) and such Pari Passu Indebtedness tendered pursuant to an Asset
\nSale Offer is less than the Excess Proceeds, the Issuer may use any remaining
\nExcess Proceeds for general corporate purposes, subject to other covenants
\ncontained in the Indenture. If the aggregate principal amount of Notes or the
\nPari Passu Indebtedness surrendered by such holders thereof exceeds the amount
\nof Excess Proceeds, the Trustee shall select the Notes and such Pari Passu
\nIndebtedness to be purchased on a pro rata<\/u> basis based on the accreted
\nvalue or principal amount of the Notes or such Pari Passu Indebtedness tendered.
\nUpon completion of any such Asset Sale Offer, the amount of Excess Proceeds
\nshall be reset at zero. Holders of Notes that are the subject of an offer to
\npurchase will receive an Asset Sale Offer from the Issuer prior to any related
\npurchase date and may elect to have such Notes purchased by completing the form
\nentitled “Option of Holder to Elect Purchase” attached to the Notes.<\/p>\n 9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
\nwithout coupons in denominations of $2,000 and integral multiples of $1,000 in
\nexcess thereof. The transfer of Notes may be registered and Notes may be
\nexchanged as provided in the Indenture. The Registrar and the Trustee may
\nrequire a Holder, among other things, to furnish appropriate endorsements and
\ntransfer documents and the Issuer may require a Holder to pay any taxes and fees
\nrequired by law or permitted by the Indenture. The Issuer need not exchange or
\nregister the transfer of any Note or portion of a Note selected for redemption
\nor tendered (and not withdrawn) for repurchase in connection with a Change of
\nControl Offer, an Asset Sale Offer or other tender offer, in whole or in part,
\nexcept for the unredeemed portion of any Note being redeemed in part. Also, the
\nIssuer need not exchange or register the transfer of any Notes for a period of
\n15 days before a selection of Notes to be redeemed.<\/p>\n 10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
\nits owner for all purposes.<\/p>\n A-7<\/p>\n
\n11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the
\nNotes may be amended or supplemented as provided in the Indenture.<\/p>\n 12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are
\ndefined in Section 6.01 of the Indenture. If any Event of Default occurs and is
\ncontinuing, the Trustee or the Holders of at least 30% in principal amount of
\nthe then outstanding Notes may declare the principal, premium, if any, interest
\nand any other monetary obligations on all the then outstanding Notes to be due
\nand payable immediately. Notwithstanding the foregoing, in the case of an Event
\nof Default arising from certain events of bankruptcy or insolvency, all
\noutstanding Notes will become due and payable immediately without further action
\nor notice. Holders may not enforce the Indenture, the Notes or the Guarantees
\nexcept as provided in the Indenture. Subject to certain limitations, Holders of
\na majority in aggregate principal amount of the then outstanding Notes may
\ndirect the Trustee in its exercise of any trust or power. The Trustee may
\nwithhold from Holders of the Notes notice of any continuing Default (except a
\nDefault relating to the payment of principal, premium, if any, Additional
\nInterest, if any, or interest) if it determines that withholding notice is in
\ntheir interest. The Holders of a majority in aggregate principal amount of the
\nNotes then outstanding by notice to the Trustee may on behalf of the Holders of
\nall of the Notes waive any existing Default or and its consequences under the
\nIndenture except a continuing Default in payment of the principal of, premium,
\nif any, Additional Interest, if any, or interest on, any of the Notes held by a
\nnon-consenting Holder. The Issuer and each Guarantor (to the extent that such
\nGuarantor is so required under the Trust Indenture Act) is required to deliver
\nto the Trustee annually a statement regarding compliance with the Indenture, and
\nthe Issuer is required within five (5) Business Days after becoming aware of any
\nDefault, to deliver to the Trustee a statement specifying such Default and what
\naction the Issuer proposes to take with respect thereto.<\/p>\n 13. AUTHENTICATION. This Note shall not be entitled to any benefit under the
\nIndenture or be valid or obligatory for any purpose until authenticated by the
\nmanual signature of the Trustee.<\/p>\n 14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
\nDEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
\nthe Indenture, Holders of Restricted Global Notes and Restricted Definitive
\nNotes shall have all the rights set forth in the Registration Rights Agreement,
\ndated as of July 29, 2010, among Igloo Merger Corporation, Interactive Data
\nCorporation, the Guarantors named therein and the other parties named on the
\nsignature pages thereof (the “Registration Rights Agreement<\/u>“), including
\nthe right to receive Additional Interest (as defined in the Registration Rights
\nAgreement).<\/p>\n 15. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
\nTO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES.<\/p>\n 16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee
\non Uniform Security Identification Procedures, the Issuer has caused CUSIP
\nnumbers to be printed on the Notes and the Trustee may use CUSIP numbers in
\nnotices of redemption as a convenience to Holders. No representation is made as
\nto the accuracy of such numbers either as printed on the Notes or as contained
\nin any notice of redemption and reliance may be placed only on the other
\nidentification numbers placed thereon.<\/p>\n A-8<\/p>\n
\nThe Issuer will furnish to any Holder upon written request and without charge
\na copy of the Indenture and\/or the Registration Rights Agreement. Requests may
\nbe made to the Issuer at the following address:<\/p>\n 32 Crosby Drive<\/p>\n Bedford, Massachusetts 01730<\/p>\n Fax No.: (781) 687-8005<\/p>\n Attention: General Counsel<\/p>\n A-9<\/p>\n
\nASSIGNMENT FORM<\/p>\n To assign this Note, fill in the form below:<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (I) or (we) assign and transfer this Note to:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n (Insert assignee153s legal name)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (Insert assignee153s soc. sec. or tax I.D. no.)<\/p>\n (Print or type assignee153s name, address and zip code)<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n and irrevocably appoint<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n to transfer this Note on the books of the Issuer. The agent may substitute
\nanother to act for him.<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Date:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Your Signature:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n (Sign exactly as your name appears on<\/p>\n the face of this Note)<\/p>\n<\/td>\n<\/tr>\n | \n| \n Signature Guarantee:*<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| \n *<\/p>\n<\/td>\n | \n Participant in a recognized Signature Guarantee Medallion Program (or other
\nsignature guarantor acceptable to the Trustee).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n A-10<\/p>\n
\nOPTION OF HOLDER TO ELECT PURCHASE<\/p>\n If you want to elect to have this Note purchased by the Issuer pursuant to
\nSection 4.10 or 4.14 of the Indenture, check the appropriate box below:<\/p>\n [ ] Section 4.10 [ ] Section 4.14<\/p>\n If you want to elect to have only part of this Note purchased by the Issuer
\npursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you
\nelect to have purchased:<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n $ <\/u><\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Date:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Your Signature:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n (Sign exactly as your name appears on<\/p>\n the face of this Note)<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Tax Identification No.:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Signature Guarantee:*<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| \n *<\/p>\n<\/td>\n | \n Participant in a recognized Signature Guarantee Medallion Program (or other
\nsignature guarantor acceptable to the Trustee).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n A-11<\/p>\n
\nSCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*<\/p>\n The initial outstanding principal amount of this Global Note is $ <\/u>.
\nThe following exchanges of a part of this Global Note for an interest in another
\nGlobal Note or for a Definitive Note, or exchanges of a part of another Global
\nor Definitive Note for an interest in this Global Note, have been made:<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Date of<\/p>\n Exchange<\/p>\n<\/td>\n | <\/td>\n | \n Amount of<\/p>\n decrease<\/p>\n in Principal<\/p>\n Amount<\/p>\n<\/td>\n | <\/td>\n | \n Amount of increase<\/p>\n in Principal<\/p>\n Amount of this<\/p>\n Global Note<\/p>\n<\/td>\n | <\/td>\n | \n Principal Amount<\/p>\n of<\/p>\n this Global Note<\/p>\n following such<\/p>\n decrease or<\/p>\n increase<\/p>\n<\/td>\n | <\/td>\n | \n Signature of
\nauthorized officer<\/p>\n of Trustee or<\/p>\n Note Custodian<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n| \n *<\/p>\n<\/td>\n | \n This schedule should be included only if the Note is issued in global form.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n A-12<\/p>\n
\nEXHIBIT B<\/p>\n FORM OF CERTIFICATE OF TRANSFER<\/p>\n Interactive Data Corporation<\/p>\n 32 Crosby Drive<\/p>\n Bedford, Massachusetts 01730<\/p>\n Fax No.: (781) 687-8005<\/p>\n Attention: General Counsel<\/p>\n The Bank of New York Mellon Trust Company, N.A.<\/p>\n 525 William Penn Place, 38th Floor<\/p>\n Pittsburgh, PA 15259<\/p>\n Fax No.: (412) 234-7535<\/p>\n Attention: Corporate Trust Administration : IDC<\/p>\n Re: 10.25% senior notes due 2018<\/p>\n Reference is hereby made to the Indenture, dated as of July 29, 2010 (the
\n“Indenture<\/u>“), among Igloo Merger Corporation, Interactive Data
\nCorporation, the Guarantors named therein and the Trustee. Capitalized terms
\nused but not defined herein shall have the meanings given to them in the
\nIndenture.<\/p>\n (the “Transferor<\/u>“) owns and proposes to transfer the Note[s] or
\ninterest in such Note[s] specified in Annex A hereto, in the principal amount of
\n$ <\/u>in such Note[s] or interests (the “Transfer<\/u>“), to (the
\n“Transferee<\/u>“), as further specified in Annex A hereto. In connection with
\nthe Transfer, the Transferor hereby certifies that:<\/p>\n [CHECK ALL THAT APPLY]<\/p>\n 1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
\n144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
\nbeing effected pursuant to and in accordance with Rule 144A under the United
\nStates Securities Act of 1933, as amended (the “Securities Act<\/u>“), and,
\naccordingly, the Transferor hereby further certifies that the beneficial
\ninterest or Definitive Note is being transferred to a Person that the Transferor
\nreasonably believes is purchasing the beneficial interest or Definitive Note for
\nits own account, or for one or more accounts with respect to which such Person
\nexercises sole investment discretion, and such Person and each such account is a
\n“qualified institutional buyer” within the meaning of Rule 144A in a transaction
\nmeeting the requirements of Rule 144A and such Transfer is in compliance with
\nany applicable blue sky securities laws of any state of the United States.<\/p>\n 2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
\nREGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
\nTransfer is being effected pursuant to and in accordance with Rule 903 or Rule
\n904 under the Securities Act and, accordingly, the Transferor hereby further
\ncertifies that (i) the Transfer is not being made to a person in the United
\nStates and (x) at the time the buy order was originated, the Transferee was
\noutside the United States or such Transferor and any Person acting on its behalf
\nreasonably believed and believes that the Transferee was outside the United
\nStates or (y) the transaction was executed in, on or through the facilities of a
\ndesignated offshore securities market and neither such Transferor nor any Person
\nacting on its behalf knows that the transaction was prearranged with a buyer in
\nthe United States, (ii) no directed selling efforts have been made in
\ncontravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
\nunder the Securities Act (iii) the transaction is not part of a plan or scheme
\nto evade the registration requirements of the Securities Act and (iv) if the
\nproposed transfer is being made prior to the expiration of the Restricted
\nPeriod, the transfer is not being made to a U.S. Person or for the account or
\nbenefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
\nthe proposed transfer in accordance with the terms of the Indenture, the
\ntransferred beneficial interest or Definitive Note will be subject to the
\nrestrictions on Transfer enumerated in the Indenture and the Securities Act.\n<\/p>\n B-1<\/p>\n
\n3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
\nINTEREST IN THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT
\nOTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in
\ncompliance with the transfer restrictions applicable to beneficial interests in
\nRestricted Global Notes and Restricted Definitive Notes and pursuant to and in
\naccordance with the Securities Act and any applicable blue sky securities laws
\nof any state of the United States, and accordingly the Transferor hereby further
\ncertifies that (check one):<\/p>\n (a) [ ] such Transfer is being effected pursuant to and in accordance with
\nRule 144 under the Securities Act;<\/p>\n or<\/p>\n (b) [ ] such Transfer is being effected to the Issuer or a subsidiary
\nthereof;<\/p>\n or<\/p>\n (c) [ ] such Transfer is being effected pursuant to an effective registration
\nstatement under the Securities Act and in compliance with the prospectus
\ndelivery requirements of the Securities Act.<\/p>\n 4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
\nUNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.<\/p>\n (a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
\neffected pursuant to and in accordance with Rule 144 under the Securities Act
\nand in compliance with the transfer restrictions contained in the Indenture and
\nany applicable blue sky securities laws of any state of the United States and
\n(ii) the restrictions on transfer contained in the Indenture and the Private
\nPlacement Legend are not required in order to maintain compliance with the
\nSecurities Act. Upon consummation of the proposed Transfer in accordance with
\nthe terms of the Indenture, the transferred beneficial interest or Definitive
\nNote will no longer be subject to the restrictions on transfer enumerated in the
\nPrivate Placement Legend printed on the Restricted Global Notes, on Restricted
\nDefinitive Notes and in the Indenture.<\/p>\n (b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
\nbeing effected pursuant to and in accordance with Rule 903 or Rule 904 under the
\nSecurities Act and in compliance with the transfer restrictions contained in the
\nIndenture and any applicable blue sky securities laws of any state of the United
\nStates and (ii) the restrictions on transfer contained in the Indenture and the
\nPrivate Placement Legend are not required in order to maintain compliance with
\nthe Securities Act. Upon consummation of the proposed Transfer in accordance
\nwith the terms of the Indenture, the transferred beneficial interest or
\nDefinitive Note will no longer be subject to the restrictions on transfer
\nenumerated in the Private Placement Legend printed on the Restricted Global
\nNotes, on Restricted Definitive Notes and in the Indenture.<\/p>\n B-2<\/p>\n
\n(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is
\nbeing effected pursuant to and in compliance with an exemption from the
\nregistration requirements of the Securities Act other than Rule 144, Rule 903 or
\nRule 904 and in compliance with the transfer restrictions contained in the
\nIndenture and any applicable blue sky securities laws of any State of the United
\nStates and (ii) the restrictions on transfer contained in the Indenture and the
\nPrivate Placement Legend are not required in order to maintain compliance with
\nthe Securities Act. Upon consummation of the proposed Transfer in accordance
\nwith the terms of the Indenture, the transferred beneficial interest or
\nDefinitive Note will not be subject to the restrictions on transfer enumerated
\nin the Private Placement Legend printed on the Restricted Global Notes or
\nRestricted Definitive Notes and in the Indenture.<\/p>\n B-3<\/p>\n
\nThis certificate and the statements contained herein are made for your
\nbenefit and the benefit of the Issuer.<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [Insert Name of Transferor]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Dated:<\/p>\n B-4<\/p>\n
\nANNEX A TO CERTIFICATE OF TRANSFER<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 1.<\/p>\n<\/td>\n | <\/td>\n | \n The Transferor owns and proposes to transfer the following:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n [CHECK ONE OF (a) OR (b)]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (a)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] a beneficial interest in the:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n (i)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] 144A Global Note (CUSIP [ ]), or<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n (ii)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] Regulation S Global Note (CUSIP [ ]), or<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (b)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] a Restricted Definitive Note.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 2.<\/p>\n<\/td>\n | <\/td>\n | \n After the Transfer the Transferee will hold:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n [CHECK ONE]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (a)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] a beneficial interest in the:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n (i)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] 144A Global Note (CUSIP [ ]), or<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n (ii)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] Regulation S Global Note (CUSIP [ ]), or<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n (iii)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] Unrestricted Global Note (CUSIP [ ]); or<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (b)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] a Restricted Definitive Note; or<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (c)<\/p>\n<\/td>\n | <\/td>\n | \n [ ] an Unrestricted Definitive Note, in accordance with the terms of the
\nIndenture.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n B-5<\/p>\n
\nEXHIBIT C<\/p>\n FORM OF CERTIFICATE OF EXCHANGE<\/p>\n Interactive Data Corporation<\/p>\n 32 Crosby Drive<\/p>\n Bedford, Massachusetts 01730<\/p>\n Fax No.: (781) 687-8005<\/p>\n Attention: General Counsel<\/p>\n The Bank of New York Mellon Trust Company, N.A.<\/p>\n 525 William Penn Place, 38th Floor<\/p>\n Pittsburgh, PA 15259<\/p>\n Fax No.: (412) 234-7535<\/p>\n Attention: Corporate Trust Administration : IDC<\/p>\n Re: 10.25% senior notes due 2018<\/p>\n Reference is hereby made to the Indenture, dated as of July 29, 2010 (the
\n“Indenture<\/u>“), among Igloo Merger Corporation, Interactive Data
\nCorporation, the Guarantors named therein and the Trustee. Capitalized terms
\nused but not defined herein shall have the meanings given to them in the
\nIndenture.<\/p>\n (the “Owner<\/u>“) owns and proposes to exchange the Note[s] or interest in
\nsuch Note[s] specified herein, in the principal amount of $ <\/u>in such
\nNote[s] or interests (the “Exchange<\/u>“). In connection with the Exchange,
\nthe Owner hereby certifies that:<\/p>\n 1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
\nRESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
\nIN AN UNRESTRICTED GLOBAL NOTE<\/p>\n a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
\nNOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with
\nthe Exchange of the Owner153s beneficial interest in a Restricted Global Note for
\na beneficial interest in an Unrestricted Global Note in an equal principal
\namount, the Owner hereby certifies (i) the beneficial interest is being acquired
\nfor the Owner153s own account without transfer, (ii) such Exchange has been
\neffected in compliance with the transfer restrictions applicable to the Global
\nNotes and pursuant to and in accordance with the United States Securities Act of
\n1933, as amended (the “Securities Act<\/u>“), (iii) the restrictions on
\ntransfer contained in the Indenture and the Private Placement Legend are not
\nrequired in order to maintain compliance with the Securities Act and (iv) the
\nbeneficial interest in an Unrestricted Global Note is being acquired in
\ncompliance with any applicable blue sky securities laws of any state of the
\nUnited States.<\/p>\n C-1<\/p>\n
\nb) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
\nNOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the
\nOwner153s beneficial interest in a Restricted Global Note for an Unrestricted
\nDefinitive Note, the Owner hereby certifies (i) the Definitive Note is being
\nacquired for the Owner153s own account without transfer, (ii) such Exchange has
\nbeen effected in compliance with the transfer restrictions applicable to the
\nRestricted Global Notes and pursuant to and in accordance with the Securities
\nAct, (iii) the restrictions on transfer contained in the Indenture and the
\nPrivate Placement Legend are not required in order to maintain compliance with
\nthe Securities Act and (iv) the Definitive Note is being acquired in compliance
\nwith any applicable blue sky securities laws of any state of the United States.\n<\/p>\n c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
\nINTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner153s Exchange
\nof a Restricted Definitive Note for a beneficial interest in an Unrestricted
\nGlobal Note, the Owner hereby certifies (i) the beneficial interest is being
\nacquired for the Owner153s own account without transfer, (ii) such Exchange has
\nbeen effected in compliance with the transfer restrictions applicable to
\nRestricted Definitive Notes and pursuant to and in accordance with the
\nSecurities Act, (iii) the restrictions on transfer contained in the Indenture
\nand the Private Placement Legend are not required in order to maintain
\ncompliance with the Securities Act and (iv) the beneficial interest is being
\nacquired in compliance with any applicable blue sky securities laws of any state
\nof the United States.<\/p>\n d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED
\nDEFINITIVE NOTE. In connection with the Owner153s Exchange of a Restricted
\nDefinitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
\n(i) the Unrestricted Definitive Note is being acquired for the Owner153s own
\naccount without transfer, (ii) such Exchange has been effected in compliance
\nwith the transfer restrictions applicable to Restricted Definitive Notes and
\npursuant to and in accordance with the Securities Act, (iii) the restrictions on
\ntransfer contained in the Indenture and the Private Placement Legend are not
\nrequired in order to maintain compliance with the Securities Act and (iv) the
\nUnrestricted Definitive Note is being acquired in compliance with any applicable
\nblue sky securities laws of any state of the United States.<\/p>\n 2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
\nRESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
\nIN RESTRICTED GLOBAL NOTES<\/p>\n a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
\nNOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the
\nOwner153s beneficial interest in a Restricted Global Note for a Restricted
\nDefinitive Note with an equal principal amount, the Owner hereby certifies that
\nthe Restricted Definitive Note is being acquired for the Owner153s own account
\nwithout transfer. Upon consummation of the proposed Exchange in accordance with
\nthe terms of the Indenture, the Restricted Definitive Note issued will continue
\nto be subject to the restrictions on transfer enumerated in the Private
\nPlacement Legend printed on the Restricted Definitive Note and in the Indenture
\nand the Securities Act.<\/p>\n C-2<\/p>\n
\nb) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
\nINTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
\nOwner153s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
\n[ ] 144A Global Note [ ] Regulation S Global Note, with an equal principal
\namount, the Owner hereby certifies (i) the beneficial interest is being acquired
\nfor the Owner153s own account without transfer and (ii) such Exchange has been
\neffected in compliance with the transfer restrictions applicable to the
\nRestricted Global Notes and pursuant to and in accordance with the Securities
\nAct, and in compliance with any applicable blue sky securities laws of any state
\nof the United States. Upon consummation of the proposed Exchange in accordance
\nwith the terms of the Indenture, the beneficial interest issued will be subject
\nto the restrictions on transfer enumerated in the Private Placement Legend
\nprinted on the relevant Restricted Global Note and in the Indenture and the
\nSecurities Act.<\/p>\n This certificate and the statements contained herein are made for your
\nbenefit and the benefit of the Issuer and are dated .<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [Insert Name of Transferor]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Dated:<\/p>\n C-3<\/p>\n
\nEXHIBIT D<\/p>\n [FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
\nGUARANTORS]<\/p>\n Supplemental Indenture (this “Supplemental Indenture<\/u>“), dated as of ,
\namong (the “Guaranteeing Subsidiary<\/u>“), a subsidiary of Interactive Data
\nCorporation, a Delaware Corporation (the “Issuer<\/u>“), and The Bank of New
\nYork Mellon Trust Company, N.A., as trustee (the “Trustee<\/u>“).<\/p>\n W I T N E S S E T H<\/p>\n WHEREAS, each of Igloo Merger Corporation, Interactive Data Corporation and
\nthe Guarantors (as defined in the Indenture referred to below) has heretofore
\nexecuted and delivered to the Trustee an indenture (the “Indenture<\/u>“),
\ndated as of July 29, 2010, providing for the issuance of an unlimited aggregate
\nprincipal amount of 10.25% senior notes due 2018 (the “Notes<\/u>“);<\/p>\n WHEREAS, the Indenture provides that under certain circumstances the
\nGuaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
\nindenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
\nguarantee all of the Issuer153s Obligations under the Notes and the Indenture on
\nthe terms and conditions set forth herein and under the Indenture (the
\n“Guarantee<\/u>“); and<\/p>\n WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized
\nto execute and deliver this Supplemental Indenture.<\/p>\n NOW THEREFORE, in consideration of the foregoing and for other good and
\nvaluable consideration, the receipt of which is hereby acknowledged, the parties
\nmutually covenant and agree for the equal and ratable benefit of the Holders of
\nthe Notes as follows:<\/p>\n (1) Capitalized Terms<\/u>. Capitalized terms used herein without
\ndefinition shall have the meanings assigned to them in the Indenture.<\/p>\n (2) Agreement to Guarantee<\/u>. The Guaranteeing Subsidiary hereby agrees
\nas follows:<\/p>\n (a) Along with all Guarantors named in the Indenture, to jointly and
\nseverally unconditionally guarantee to each Holder of a Note authenticated and
\ndelivered by the Trustee and to the Trustee and its successors and assigns,
\nirrespective of the validity and enforceability of the Indenture, the Notes or
\nthe obligations of the Issuer hereunder or thereunder, that:<\/p>\n (i) the principal of and interest, premium and Additional Interest, if any,
\non the Notes will be promptly paid in full when due, whether at maturity, by
\nacceleration, redemption or otherwise, and interest on the overdue principal of
\nand interest on the Notes, if any, if lawful, and all other obligations of the
\nIssuer to the Holders or the Trustee hereunder or thereunder will be promptly
\npaid in full or performed, all in accordance with the terms hereof and thereof;
\nand<\/p>\n D-1<\/p>\n
\n(ii) in case of any extension of time of payment or renewal of any Notes or
\nany of such other obligations, that same will be promptly paid in full when due
\nor performed in accordance with the terms of the extension or renewal, whether
\nat stated maturity, by acceleration or otherwise. Failing payment when due of
\nany amount so guaranteed or any performance so guaranteed for whatever reason,
\nthe Guarantors and the Guaranteeing Subsidiary shall be jointly and severally
\nobligated to pay the same immediately. This is a guarantee of payment and not a
\nguarantee of collection.<\/p>\n (b) The obligations hereunder shall be unconditional, irrespective of the
\nvalidity, regularity or enforceability of the Notes or the Indenture, the
\nabsence of any action to enforce the same, any waiver or consent by any Holder
\nof the Notes with respect to any provisions hereof or thereof, the recovery of
\nany judgment against the Issuer, any action to enforce the same or any other
\ncircumstance which might otherwise constitute a legal or equitable discharge or
\ndefense of a guarantor.<\/p>\n (c) The following is hereby waived: diligence, presentment, demand of
\npayment, filing of claims with a court in the event of insolvency or bankruptcy
\nof the Issuer, any right to require a proceeding first against the Issuer,
\nprotest, notice and all demands whatsoever.<\/p>\n (d) This Guarantee shall not be discharged except by complete performance of
\nthe obligations contained in the Notes, the Indenture and this Supplemental
\nIndenture, and the Guaranteeing Subsidiary accepts all obligations of a
\nGuarantor under the Indenture.<\/p>\n (e) If any Holder or the Trustee is required by any court or otherwise to
\nreturn to the Issuer, the Guarantors (including the Guaranteeing Subsidiary), or
\nany custodian, trustee, liquidator or other similar official acting in relation
\nto either the Issuer or the Guarantors, any amount paid either to the Trustee or
\nsuch Holder, this Guarantee, to the extent theretofore discharged, shall be
\nreinstated in full force and effect.<\/p>\n (f) The Guaranteeing Subsidiary shall not be entitled to any right of
\nsubrogation in relation to the Holders in respect of any obligations guaranteed
\nhereby until payment in full of all obligations guaranteed hereby.<\/p>\n (g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders
\nand the Trustee, on the other hand, (x) the maturity of the obligations
\nguaranteed hereby may be accelerated as provided in Article 6 of the Indenture
\nfor the purposes of this Guarantee, notwithstanding any stay, injunction or
\nother prohibition preventing such acceleration in respect of the obligations
\nguaranteed hereby, and (y) in the event of any declaration of acceleration of
\nsuch obligations as provided in Article 6 of the Indenture, such obligations
\n(whether or not due and payable) shall forthwith become due and payable by the
\nGuaranteeing Subsidiary for the purpose of this Guarantee.<\/p>\n (h) The Guaranteeing Subsidiary shall have the right to seek contribution
\nfrom any non-paying Guarantor so long as the exercise of such right does not
\nimpair the rights of the Holders under this Guarantee.<\/p>\n (i) Pursuant to Section 10.02 of the Indenture, after giving effect to all
\nother contingent and fixed liabilities that are relevant under any applicable
\nbankruptcy or fraudulent conveyance laws, and after giving effect to any
\ncollections from, rights to receive contribution from or payments made by or on
\nbehalf of any other Guarantor in respect of the obligations of such other
\nGuarantor under Article 10 of the Indenture, this new Guarantee shall be limited
\nto the maximum amount permissible such that the obligations of such Guaranteeing
\nSubsidiary under this Guarantee will not constitute a fraudulent transfer or
\nconveyance.<\/p>\n D-2<\/p>\n
\n(j) This Guarantee shall remain in full force and effect and continue to be
\neffective should any petition be filed by or against the Issuer for liquidation,
\nreorganization, should the Issuer become insolvent or make an assignment for the
\nbenefit of creditors or should a receiver or trustee be appointed for all or any
\nsignificant part of the Issuer153s assets, and shall, to the fullest extent
\npermitted by law, continue to be effective or be reinstated, as the case may be,
\nif at any time payment and performance of the Notes are, pursuant to applicable
\nlaw, rescinded or reduced in amount, or must otherwise be restored or returned
\nby any obligee on the Notes and Guarantee, whether as a “voidable preference,”
\n“fraudulent transfer” or otherwise, all as though such payment or performance
\nhad not been made. In the event that any payment or any part thereof, is
\nrescinded, reduced, restored or returned, the Note shall, to the fullest extent
\npermitted by law, be reinstated and deemed reduced only by such amount paid and
\nnot so rescinded, reduced, restored or returned.<\/p>\n (k) In case any provision of this Guarantee shall be invalid, illegal or
\nunenforceable, the validity, legality, and enforceability of the remaining
\nprovisions shall not in any way be affected or impaired thereby.<\/p>\n (l) This Guarantee shall be a general unsecured senior obligation of such
\nGuaranteeing Subsidiary, ranking pari passu<\/u> with any other future Senior
\nIndebtedness of the Guaranteeing Subsidiary, if any.<\/p>\n (m) Each payment to be made by the Guaranteeing Subsidiary in respect of this
\nGuarantee shall be made without set-off, counterclaim, reduction or diminution
\nof any kind or nature.<\/p>\n (3) Execution and Delivery<\/u>. The Guaranteeing Subsidiary agrees that
\nthe Guarantee shall remain in full force and effect notwithstanding the absence
\nof the endorsement of any notation of such Guarantee on the Notes.<\/p>\n (4) Merger, Consolidation or Sale of All or Substantially All Assets<\/u>.\n<\/p>\n (a) Except as otherwise provided in Section 5.01(c) of the Indenture, the
\nGuaranteeing Subsidiary may not consolidate or merge with or into or wind up
\ninto (whether or not the Issuer or Guaranteeing Subsidiary is the surviving
\ncorporation), or sell, assign, transfer, lease, convey or otherwise dispose of
\nall or substantially all of its properties or assets, in one or more related
\ntransactions, to any Person unless:<\/p>\n (i)(A) the Guaranteeing Subsidiary is the surviving corporation or the Person
\nformed by or surviving any such consolidation or merger (if other than the
\nGuaranteeing Subsidiary) or to which such sale, assignment, transfer, lease,
\nconveyance or other disposition will have been made is a corporation organized
\nor existing under the laws of the jurisdiction of organization of the
\nGuaranteeing Subsidiary, as the case may be, or the laws of the United States,
\nany state thereof, the District of Columbia, or any territory thereof (the
\nGuaranteeing Subsidiary or such Person, as the case may be, being herein called
\nthe “Successor Person<\/u>“);<\/p>\n (B) the Successor Person, if other than the Guaranteeing Subsidiary,
\nexpressly assumes all the obligations of the Guaranteeing Subsidiary under the
\nIndenture and the Guaranteeing Subsidiary153s related Guarantee pursuant to
\nsupplemental indentures or other documents or instruments in form reasonably
\nsatisfactory to the Trustee;<\/p>\n D-3<\/p>\n
\n(C) immediately after such transaction, no Default exists; and<\/p>\n (D) the Issuer shall have delivered to the Trustee an Officer153s Certificate
\nand an Opinion of Counsel, each stating that such consolidation, merger or
\ntransfer and such supplemental indentures, if any, comply with the Indenture; or\n<\/p>\n (ii) the transaction is made in compliance with Section 4.10 of the
\nIndenture;<\/p>\n (b) Subject to certain limitations described in the Indenture, the Successor
\nPerson will succeed to, and be substituted for, the Guaranteeing Subsidiary
\nunder the Indenture and the Guaranteeing Subsidiary153s Guarantee. Notwithstanding
\nthe foregoing, the Guaranteeing Subsidiary may merge into or transfer all or
\npart of its properties and assets to another Guarantor or the Issuer.<\/p>\n (5) Releases<\/u>.<\/p>\n The Guarantee of the Guaranteeing Subsidiary shall be automatically and
\nunconditionally released and discharged, and no further action by the
\nGuaranteeing Subsidiary, the Issuer or the Trustee is required for the release
\nof the Guaranteeing Subsidiary153s Guarantee, upon:<\/p>\n (1) (A) any sale, exchange or transfer (by merger or otherwise) of the
\nCapital Stock of the Guaranteeing Subsidiary (including any sale, exchange or
\ntransfer), after which the Guaranteeing Subsidiary is no longer a Restricted
\nSubsidiary or all or substantially all the assets of the Guaranteeing Subsidiary
\nwhich sale, exchange or transfer is made in compliance with the applicable
\nprovisions of the Indenture;<\/p>\n (B) the release or discharge of the guarantee by the Guaranteeing Subsidiary
\nof the Senior Credit Facilities or the guarantee which resulted in the creation
\nof the Guarantee, except a discharge or release by or as a result of payment
\nunder such guarantee;<\/p>\n (C) the proper designation of the Guaranteeing Subsidiary as an Unrestricted
\nSubsidiary; or<\/p>\n (D) the Issuer exercising its Legal Defeasance option or Covenant Defeasance
\noption in accordance with Article 8 of the Indenture or the Issuer153s obligations
\nunder the Indenture being discharged in accordance with the terms of the
\nIndenture; and<\/p>\n (2) the Guaranteeing Subsidiary delivering to the Trustee an Officer153s
\nCertificate and an Opinion of Counsel, each stating that all conditions
\nprecedent provided for in the Indenture relating to such transaction have been
\ncomplied with.<\/p>\n (6) No Recourse Against Others<\/u>. No director, officer, employee,
\nincorporator or stockholder of the Guaranteeing Subsidiary shall have any
\nliability for any obligations of the Issuer or the Guarantors (including the
\nGuaranteeing Subsidiary) under the Notes, any Guarantees, the Indenture or this
\nSupplemental Indenture or for any claim based on, in respect of, or by reason
\nof, such obligations or their creation. Each Holder by accepting Notes waives
\nand releases all such liability. The waiver and release are part of the
\nconsideration for issuance of the Notes.<\/p>\n (7) Governing Law<\/u>. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND
\nCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.<\/p>\n D-4<\/p>\n
\n(8) Counterparts<\/u>. The parties may sign any number of copies of this
\nSupplemental Indenture. Each signed copy shall be an original, but all of them
\ntogether represent the same agreement.<\/p>\n (9) Effect of Headings<\/u>. The Section headings herein are for
\nconvenience only and shall not affect the construction hereof.<\/p>\n (10) The Trustee<\/u>. The Trustee shall not be responsible in any manner
\nwhatsoever for or in respect of the validity or sufficiency of this Supplemental
\nIndenture or for or in respect of the recitals contained herein, all of which
\nrecitals are made solely by the Guaranteeing Subsidiary.<\/p>\n (11) Subrogation<\/u>. The Guaranteeing Subsidiary shall be subrogated to
\nall rights of Holders of Notes against the Issuer in respect of any amounts paid
\nby the Guaranteeing Subsidiary pursuant to the provisions of Section 2 hereof
\nand Section 10.01 of the Indenture; provided<\/u> that, if an Event of Default
\nhas occurred and is continuing, the Guaranteeing Subsidiary shall not be
\nentitled to enforce or receive any payments arising out of, or based upon, such
\nright of subrogation until all amounts then due and payable by the Issuer under
\nthe Indenture or the Notes shall have been paid in full.<\/p>\n (12) Benefits Acknowledged<\/u>. The Guaranteeing Subsidiary153s Guarantee is
\nsubject to the terms and conditions set forth in the Indenture. The Guaranteeing
\nSubsidiary acknowledges that it will receive direct and indirect benefits from
\nthe financing arrangements contemplated by the Indenture and this Supplemental
\nIndenture and that the guarantee and waivers made by it pursuant to this
\nGuarantee are knowingly made in contemplation of such benefits.<\/p>\n (13) Successors<\/u>. All agreements of the Guaranteeing Subsidiary in this
\nSupplemental Indenture shall bind its Successors, except as otherwise provided
\nin Section 2(k) hereof or elsewhere in this Supplemental Indenture. All
\nagreements of the Trustee in this Supplemental Indenture shall bind its
\nsuccessors.<\/p>\n D-5<\/p>\n
\nIN WITNESS WHEREOF, the parties hereto have caused this Supplemental
\nIndenture to be duly executed, all as of the date first above written.<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [GUARANTEEING SUBSIDIARY]<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n<\/tr>\n | \n| \n THE BANK OF NEW YORK MELLON<\/p>\n TRUST COMPANY, N.A., as Trustee<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n D-6<\/p><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7878],"corporate_contracts_industries":[9418],"corporate_contracts_types":[9560,9566],"class_list":["post-41072","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-interactive-data-corp","corporate_contracts_industries-financial__securities","corporate_contracts_types-finance","corporate_contracts_types-finance__indenture"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41072","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41072"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41072"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41072"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41072"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |