a05indenture






US-DOCS\122118934.6  INDENTURE  Dated as of April 1, 2021  among  DYCOM INDUSTRIES, INC.  the Guarantors listed herein  and  U.S. BANK NATIONAL ASSOCIATION  as Trustee  4.50% SENIOR NOTES DUE 2029  Exhibit 4.1  





 






  -i-  US-DOCS\122118934.6  TABLE OF CONTENTS  Page  ARTICLE I  DEFINITIONS AND RULES OF CONSTRUCTION  SECTION 1.01. Definitions .............................................................................................................1  SECTION 1.02. Other Definitions .................................................................................................41  SECTION 1.03. Rules of Construction ..........................................................................................42  SECTION 1.04. Acts of Holders ...................................................................................................43  SECTION 1.05. Measuring Compliance. ......................................................................................45  ARTICLE II  THE NOTES  SECTION 2.01. Form and Dating; Terms .....................................................................................47  SECTION 2.02. Execution and Authentication .............................................................................49  SECTION 2.03. Registrar and Paying Agent ................................................................................49  SECTION 2.04. Paying Agent to Hold Money in Trust ................................................................50  SECTION 2.05. Holder Lists .........................................................................................................50  SECTION 2.06. Transfer and Exchange ........................................................................................50  SECTION 2.07. Replacement Notes .............................................................................................63  SECTION 2.08. Outstanding Notes ...............................................................................................63  SECTION 2.09. Treasury Notes ....................................................................................................64  SECTION 2.10. Temporary Notes .................................................................................................64  SECTION 2.11. Cancellation ........................................................................................................64  SECTION 2.12. Defaulted Interest ................................................................................................64  SECTION 2.13. CUSIP Numbers and ISINs.................................................................................65  ARTICLE III  REDEMPTION  SECTION 3.01. Notices to Trustee ...............................................................................................65  SECTION 3.02. Selection of Notes to Be Redeemed ....................................................................65  SECTION 3.03. Notice of Redemption .........................................................................................66  SECTION 3.04. Effect of Notice of Redemption ..........................................................................67  SECTION 3.05. Deposit of Redemption Price ..............................................................................67  SECTION 3.06. Notes Redeemed in Part ......................................................................................67  SECTION 3.07. Optional Redemption ..........................................................................................68  SECTION 3.08. Mandatory Redemption .......................................................................................69  SECTION 3.09. Offers to Repurchase by Application of Excess Proceeds ..................................69  ARTICLE IV  COVENANTS  SECTION 4.01. Payment of Notes ................................................................................................71  





 






Page  -ii-  US-DOCS\122118934.6  SECTION 4.02. Maintenance of Office or Agency .......................................................................72  SECTION 4.03. Reports and Other Information ...........................................................................72  SECTION 4.04. Compliance Certificate .......................................................................................73  SECTION 4.05. Taxes ...................................................................................................................74  SECTION 4.06. Stay, Extension and Usury Laws ........................................................................74  SECTION 4.07. Limitation on Restricted Payments .....................................................................74  SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted  Subsidiaries .....................................................................................................82  SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of Disqualified  Stock and Preferred Stock ..............................................................................84  SECTION 4.10. Asset Sales ..........................................................................................................91  SECTION 4.11. Transactions with Affiliates ................................................................................95  SECTION 4.12. Liens ....................................................................................................................97  SECTION 4.13. Company Existence.............................................................................................98  SECTION 4.14. Offer to Repurchase Upon Change of Control....................................................99  SECTION 4.15. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries .............101  SECTION 4.16. Suspension of Covenants ..................................................................................102  ARTICLE V  SUCCESSORS  SECTION 5.01. Merger, Consolidation or Sale of All or Substantially All Assets ....................103  SECTION 5.02. Successor Person Substituted ............................................................................105  ARTICLE VI  DEFAULTS AND REMEDIES  SECTION 6.01. Events of Default ..............................................................................................106  SECTION 6.02. Acceleration ......................................................................................................108  SECTION 6.03. Other Remedies .................................................................................................110  SECTION 6.04. Waiver of Past Defaults ....................................................................................110  SECTION 6.05. Control by Majority ..........................................................................................110  SECTION 6.06. Limitation on Suits ............................................................................................110  SECTION 6.07. Rights of Holders of Notes to Receive Payment ...............................................111  SECTION 6.08. Collection Suit by Trustee .................................................................................111  SECTION 6.09. Restoration of Rights and Remedies .................................................................111  SECTION 6.10. Rights and Remedies Cumulative .....................................................................111  SECTION 6.11. Delay or Omission Not Waiver .........................................................................111  SECTION 6.12. Trustee May File Proofs of Claim.....................................................................112  SECTION 6.13. Priorities ............................................................................................................112  SECTION 6.14. Undertaking for Costs .......................................................................................113  ARTICLE VII  TRUSTEE  SECTION 7.01. Duties of Trustee ...............................................................................................113  SECTION 7.02. Rights of Trustee ...............................................................................................114  





 






Page  -iii-  US-DOCS\122118934.6  SECTION 7.03. Individual Rights of Trustee .............................................................................116  SECTION 7.04. Trustee’s Disclaimer .........................................................................................116  SECTION 7.05. Notice of Defaults .............................................................................................116  SECTION 7.06. [Reserved] .........................................................................................................116  SECTION 7.07. Compensation and Indemnity ...........................................................................116  SECTION 7.08. Replacement of Trustee ....................................................................................117  SECTION 7.09. Successor Trustee by Merger, etc. ....................................................................118  SECTION 7.10. Eligibility; Disqualification ...............................................................................118  ARTICLE VIII  LEGAL DEFEASANCE AND COVENANT DEFEASANCE  SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance ...........................119  SECTION 8.02. Legal Defeasance and Discharge ......................................................................119  SECTION 8.03. Covenant Defeasance ........................................................................................119  SECTION 8.04. Conditions to Legal or Covenant Defeasance ...................................................120  SECTION 8.05. Deposited Money and Government Securities to Be Held in Trust; Other  Miscellaneous Provisions .............................................................................122  SECTION 8.06. Repayment to Issuer ..........................................................................................122  SECTION 8.07. Reinstatement ....................................................................................................122  ARTICLE IX  AMENDMENT, SUPPLEMENT AND WAIVER  SECTION 9.01. Without Consent of Holders .............................................................................123  SECTION 9.02. With Consent of Holders ...................................................................................124  SECTION 9.03. Revocation and Effect of Consents ...................................................................126  SECTION 9.04. Notation on or Exchange of Notes ....................................................................126  SECTION 9.05. Trustee to Sign Amendments, etc. ....................................................................126  SECTION 9.06. Additional Voting Terms; Calculation of Principal Amount ............................127  ARTICLE X  GUARANTEES  SECTION 10.01. Guarantee ........................................................................................................127  SECTION 10.02. Limitation on Guarantor Liability ...................................................................129  SECTION 10.03. Execution and Delivery ...................................................................................129  SECTION 10.04. Subrogation .....................................................................................................129  SECTION 10.05. Benefits Acknowledged ..................................................................................130  SECTION 10.06. Release of Guarantees .....................................................................................130  ARTICLE XI  SATISFACTION AND DISCHARGE  SECTION 11.01. Satisfaction and Discharge ..............................................................................130  SECTION 11.02. Application of Trust Money ............................................................................132  





 






Page  -iv-  US-DOCS\122118934.6  ARTICLE XII  MISCELLANEOUS  SECTION 12.01. Notices ............................................................................................................132  SECTION 12.02. Communication by Holders with Other Holders ............................................134  SECTION 12.03. Certificate and Opinion as to Conditions Precedent .......................................134  SECTION 12.04. Statements Required in Certificate or Opinion ...............................................134  SECTION 12.05. Rules by Trustee and Agents ..........................................................................135  SECTION 12.06. No Personal Liability of Directors, Officers, Employees, Members and  Stockholders .................................................................................................135  SECTION 12.07. Governing Law ...............................................................................................135  SECTION 12.08. Waiver of Jury Trial ........................................................................................135  SECTION 12.09. Force Majeure .................................................................................................135  SECTION 12.10. No Adverse Interpretation of Other Agreements ............................................135  SECTION 12.11. Successors .......................................................................................................135  SECTION 12.12. Severability .....................................................................................................135  SECTION 12.13. Counterpart Originals ......................................................................................135  SECTION 12.14. Table of Contents, Headings, etc ....................................................................136  SECTION 12.15. USA Patriot Act ..............................................................................................136    EXHIBITS  Exhibit A Form of Note  Exhibit B Form of Certificate of Transfer  Exhibit C Form of Certificate of Exchange  Exhibit D Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors    





 






    US-DOCS\122118934.6  This INDENTURE, dated as of April 1, 2021, is among Dycom Industries, Inc.  (the “Issuer”), a Florida corporation, the Guarantors (as defined herein) listed on the signature  pages hereto, and U.S. Bank National Association, as trustee (the “Trustee”).  W I T N E S S E T H  WHEREAS, the Issuer has duly authorized the creation of an issue of  $500,000,000 aggregate principal amount of the Issuer’s 4.50% senior notes due 2029 (the  “Initial Notes”);   WHEREAS, the obligations of the Issuer with respect to the due and punctual  payment of the principal of, premium, if any, and interest on the Notes (as defined herein) and  the performance and observation of each covenant and agreement under this Indenture to be  performed or observed will be unconditionally and irrevocably guaranteed by the Guarantors;  and  WHEREAS, the Issuer and each of the Guarantors has duly authorized the  execution and delivery of this Indenture;  NOW, THEREFORE, each party hereto agrees as follows for the benefit of the  other parties and for the equal and ratable benefit of the Holders.  ARTICLE I  DEFINITIONS AND RULES OF CONSTRUCTION  SECTION 1.01. Definitions.  “144A Global Note” means a Global Note substantially in the form of Exhibit A  hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or  on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a  denomination equal to the outstanding principal amount of the Notes sold in reliance on  Rule 144A.  “Acquired Indebtedness” means, with respect to any specified Person,  (1)  Indebtedness of any other Person existing at the time such other Person is  merged or consolidated with or into or wound up into or became a Restricted Subsidiary  of such specified Person, including Indebtedness incurred in connection with, or in  contemplation of, such other Person merging or consolidating with or into, winding up  into or becoming a Restricted Subsidiary of such specified Person, or  (2)  Indebtedness secured by a Lien encumbering any asset acquired by such  specified Person.  “Additional Notes” means additional Notes (other than the Initial Notes) issued  from time to time under this Indenture in accordance with Sections 2.01, 2.02 and 4.09 hereof.  “Affiliate” of any specified Person means any other Person directly or indirectly  controlling or controlled by or under direct or indirect common control with such specified  





 






  -2-  US-DOCS\122118934.6  Person.  For purposes of this definition, “control” (including, with correlative meanings, the  terms “controlling,” “controlled by” and “under common control with”), as used with respect to  any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of such Person, whether through the ownership of voting  securities, by agreement or otherwise.  “Agents” means any Registrar or Paying Agent.  “Applicable Premium” means, with respect to any Note on any applicable  Redemption Date, the greater of:  (1)  1.0% of the then-outstanding principal amount of such Note; and  (2)  the excess, if any, of  (a)  the present value at such Redemption Date of (i) the redemption price  of the Note on April 15, 2024 (such redemption price being set forth in the table  set forth in Section 3.07(b) hereof) plus (ii) all required interest payments due on  the Note through April 15, 2024 (excluding accrued but unpaid interest to the  Redemption Date), computed using a discount rate equal to the Treasury Rate as  of such Redemption Date plus 50 basis points; over  (b)  the then-outstanding principal amount of such Note.  The Issuer shall calculate the Applicable Premium. For the avoidance of doubt,  calculation of the Applicable Premium shall not be an obligation or duty of the Trustee.  “Applicable Procedures” means, with respect to any transfer or exchange of or  for, redemption of, or notice with respect to beneficial interests in any Global Note or the  redemption or repurchase of any Global Note, the rules and procedures of the Depositary,  Euroclear and/or Clearstream that apply to such transfer, exchange, redemption or repurchase.  “Asset Sale” means:   (1)  the sale, conveyance, transfer or other disposition, whether in a single  transaction or a series of related transactions, of property or assets (including by way of a Sale  and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries (each referred to  in this definition as a “disposition”); or   (2)  the issuance or sale of Equity Interests of any Restricted Subsidiary (other  than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with  Section 4.09 hereof), whether in a single transaction or a series of related transactions;  in each case, other than:   (a)  any disposition of Cash Equivalents or Investment Grade Securities or  obsolete, non-core, surplus, damaged, unnecessary, unsuitable or worn out equipment, inventory  or other property in the ordinary course of business or any disposition of inventory or goods (or  





 






  -3-  US-DOCS\122118934.6  other assets) held for sale or no longer used or useful, or economically practical to maintain in  the conduct of the business of the Issuer or any of its Restricted Subsidiaries;   (b)  the disposition of all or substantially all of the assets of the Issuer in a manner  permitted pursuant to the provisions described under Section 5.01 hereof or any disposition that  constitutes a Change of Control pursuant to this Indenture;   (c)  the making of any Restricted Payment that is permitted to be made, and is  made, under Section 4.07 hereof or any Permitted Investment;   (d)  any disposition of property or assets or issuance or sale of Equity Interests of  any Restricted Subsidiary in any transaction or series of related transactions with an aggregate  fair market value of less than $75.0 million;   (e)  any disposition of property or assets by a Restricted Subsidiary, or the  issuance of securities by a Restricted Subsidiary, in either case, to the Issuer or another  Restricted Subsidiary, or by the Issuer to a Restricted Subsidiary;   (f)  to the extent allowable under Section 1031 of the Internal Revenue Code of  1986, as amended, or comparable law or regulation, any exchange of like property (excluding  any boot thereon) for use in a Similar Business;   (g)  the lease, assignment, sub-lease, license or sub-license of any real or personal  property in the ordinary course of business;   (h)  any issuance or sale of Equity Interests in, or Indebtedness or other securities  of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary  so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such  Unrestricted Subsidiary);   (i)  any foreclosure, condemnation, expropriation, forced dispositions, eminent  domain or any similar action with respect to assets or the granting of Liens not prohibited by this  Indenture;   (j)  sales of accounts receivable, or participations therein, or Receivables Assets or  related assets, or any disposition of the Equity Interests in a Subsidiary, all or substantially all of  the assets of which are Receivables Assets, in each case, in connection with any Qualified  Receivables Facility or the disposition of an account receivable in connection with the collection  or compromise thereof;   (k)  any Designated Sale and Lease-Back Transaction and any financing  transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary  after the Issue Date, including Sale and Lease-Back Transactions and asset securitizations  permitted by this Indenture;   (l)  the sale, discount or other disposition of inventory, accounts receivable, notes  receivable or other assets in the ordinary course of business or the conversion of accounts  receivable to notes receivable in connection with the collection or compromise thereof;  





 






  -4-  US-DOCS\122118934.6   (m)   the licensing or sub-licensing of, or the assignment of, intellectual property,  software or other general intangibles in the ordinary course of business;    (n)  any surrender or waiver of contract rights or the settlement, release or  surrender of contract rights or other litigation claims in the ordinary course of business;   (o)  the entry into, amendment, exercise, termination or settlement (in whole or in  part) of Hedging Obligations or any Convertible Bond Hedge Transaction, Capped Call  Transaction or Warrant Transaction;   (p)  sales, transfers and other dispositions of Investments in joint ventures to the  extent required by, or made pursuant to, customary buy/sell arrangements between the joint  venture parties set forth in joint venture arrangements and similar binding arrangements;   (q)  the lapse, abandonment or disposition of intellectual property rights in the  ordinary course of business, which rights, in the reasonable good faith determination of the  Issuer, are not material to the conduct of the business of the Issuer and its Restricted Subsidiaries  taken as a whole;   (r)  the issuance of director qualifying shares and shares issued to foreign  nationals as required by applicable law;   (s)  the granting of a Lien that is permitted under Section 4.12 hereof or any  Permitted Lien;    (t)  any transfer of property subject to a casualty event upon receipt of the net cash  proceeds of such casualty event;  (u) any disposition to a Captive Insurance Subsidiary; and   (v) the disposition of any assets (including Equity Interests) (i) acquired in a  transaction after the Issue Date, which assets are not used or useful in the core or principal  business of the Issuer and its Restricted Subsidiaries or (ii) made in connection with the approval  of any applicable antitrust authority or otherwise necessary or advisable in the good faith  determination of the Issuer to consummate any acquisition; provided that the net cash proceeds  are applied in accordance with Section 4.10(b) hereof.  “Bank Products” means any facilities or services related to cash management,  including treasury, depository, overdraft, credit or debit card, purchase card, electronic funds  transfer and other cash management arrangements.  “Bankruptcy Law” means Title 11, U.S. Code, as amended, or any similar federal  or state law for the relief of debtors.  “Business Day” means each day which is not a Legal Holiday.  “Capital Stock” means:  (1)  in the case of a corporation, corporate stock;  





 






  -5-  US-DOCS\122118934.6  (2)  in the case of an association or business entity, any and all shares, interests,  participations, rights or other equivalents (however designated) of corporate stock;  (3)  in the case of a partnership or limited liability company, partnership or  membership interests (whether general or limited); and  (4)  any other interest or participation that confers on a Person the right to receive  a share of the profits and losses of, or distributions of assets of, the issuing Person.  “Capitalized Lease Obligation” means, at the time any determination thereof is to  be made, the amount of the liability in respect of a capital lease that would at such time be  required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes  thereto) prepared in accordance with GAAP.  “Capitalized Software Expenditures” means, for any period, the aggregate of all  expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted  Subsidiaries during such period in respect of licensed or purchased software or internally  developed software and software enhancements that, in conformity with GAAP, are or are  required to be reflected as capitalized costs on any consolidated balance sheet of such Person and  its Restricted Subsidiaries.  “Capped Call Transactions” means one or more call options (or substantively  equivalent derivative transaction) referencing the Issuer’s Equity Interests purchased by the  Issuer (or a Restricted Subsidiary) in connection with the issuance of Convertible Bond  Indebtedness with a strike or exercise price (howsoever defined) initially equal to the conversion  price or exchange price (howsoever defined) of the related Convertible Bond Indebtedness  (subject to rounding) (whether settled in shares, cash or a combination thereof) and limiting the  amount deliverable to the Issuer (or a Restricted Subsidiary) upon exercise thereof based on a  cap or upper strike price (howsoever defined).  “Captive Insurance Subsidiary” means (i) any Subsidiary of the Issuer operating  for the purpose of (a) insuring the businesses, operations or properties owned or operated by the  Issuer or any of its Subsidiaries, including their future, present or former employees, directors,  officers, managers, members, partners, independent contractors or consultants, and related  benefits and/or (b) conducting any activities or business incidental thereto (it being understood  and agreed that activities which are relevant or appropriate to qualify as an insurance company  for U.S. federal or state tax purposes shall be considered “activities or business incidental  thereto”) or (ii) any Subsidiary of any such insurance subsidiary operating for the same purpose  described in clause (i) above.  “Cash Equivalents” means:  (1)  United States dollars;  (2)  (a)    pounds sterling, euros, Canadian dollars, or any national currency of any  participating member state of the EMU; and  





 






  -6-  US-DOCS\122118934.6  (b)   local currencies of any other jurisdiction held by the Issuer or any of its  Restricted Subsidiaries from time to time in the ordinary course of business;  (3)  securities issued or directly and fully guaranteed or insured by the U.S.  government or any government of any member of the European Union or any agency or  instrumentality thereof the securities of which are unconditionally guaranteed as a full- faith-and-credit obligation of such government with maturities of 24 months or less from  the date of acquisition;  (4)  certificates of deposit, time deposits and eurodollar time deposits with  maturities of one year or less from the date of acquisition, bankers’ acceptances with  maturities not exceeding one year and overnight bank deposits, in each case with any  domestic or foreign commercial bank having capital and surplus of not less than  $250.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent  as of the date of determination) in the case of non-U.S. banks;  (5)  repurchase obligations for underlying securities of any of the types described  in clauses (3), (4), (7) and (8) of this definition entered into with any financial institution  or recognized securities dealer meeting the qualifications specified in clause (4) of this  definition;  (6)  commercial paper and variable- or fixed-rate notes having one of the three  highest ratings obtainable from Moody’s or S&P (or, if at any time neither Moody’s nor  S&P shall be rating such obligations, an equivalent rating from another nationally  recognized statistical rating agency) and in each case maturing within 24 months after the  date of creation thereof and Indebtedness or Preferred Stock issued by Persons with a  rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of  24 months or less from the date of acquisition;  (7)  marketable short-term money market and similar securities having one of the  three highest ratings obtainable from either Moody’s or S&P, respectively (or, if at any  time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from  another nationally recognized statistical rating agency) and in each case maturing within  24 months after the date of creation or acquisition thereof and any money market deposit  account issued or offered by any lender party to any Credit Facilities or with any U.S.  commercial bank having capital and surplus in excess of $250.0 million;   (8)  readily marketable direct obligations issued, or securities issued and fully  guaranteed, by any state, commonwealth or territory of the United States or the European  Union or any political subdivision or taxing authority thereof having an Investment Grade  Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be  rating such obligations, an equivalent rating from another nationally recognized statistical  rating agency) with maturities of 24 months or less from the date of acquisition;   (9)  readily marketable direct obligations issued, or securities issued and fully  guaranteed, by any foreign government or any political subdivision or public  instrumentality thereof, in each case having an Investment Grade Rating from either  





 






  -7-  US-DOCS\122118934.6  Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such  obligations, an equivalent rating from another nationally recognized statistical rating  agency) with maturities of 24 months or less from the date of acquisition;  (10)  Investments with average maturities of 12 months or less from the date of  acquisition in money market funds given one of the three highest ratings by S&P or  Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an  equivalent rating from another nationally recognized statistical rating agency); and  (11)  investment funds that invest primarily in securities of the types described in  clauses (1) through (10) of this definition.   In the case of Investments by any Foreign Subsidiary or Investments made in a country outside  the United States, Cash Equivalents shall also include (a) assets and investments of the type and,  to the extent applicable, maturity described in clauses (1) through (8) and clauses (10) and (11)  of this definition of foreign obligors, which Investments or obligors (or the parents of such  obligors) have ratings described in such clauses or equivalent ratings from comparable foreign  rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries in  accordance with normal investment practices for cash management in investments analogous to  the foregoing investments in clauses (1) through (11) of this definition and in this paragraph.  In addition, in the case of Investments by any Captive Insurance Subsidiary, Cash  Equivalents shall also include (a) such Investments with average maturities of 12 months or less  from the date of acquisition in issuers rated BBB- (or the equivalent thereof) or better by S&P or  Baa3 (or the equivalent thereof) or better by Moody’s, in each case at the time of such  Investment and (b) any Investment with a maturity of more than 12 months that would otherwise  constitute Cash Equivalents of the kind described in any of clauses (1) through (11) of this  definition or clause (a) of this paragraph, if the maturity of such Investment was 12 months or  less; provided that the effective maturity of such Investment does not exceed 15 years.  Notwithstanding the foregoing, Cash Equivalents shall include amounts  denominated in currencies other than those set forth in clauses (1) and (2) of this definition;  provided that such amounts are converted into any currency listed in clauses (1) and (2) as  promptly as practicable and in any event within ten Business Days following the receipt of such  amounts.  At any time at which the value, calculated in accordance with GAAP, of all  investments of the Issuer and its Restricted Subsidiaries that were deemed, when made, to be  Cash Equivalents in accordance with clauses (1) through (11) of this definition exceeds the  Indebtedness of the Issuer and its Restricted Subsidiaries, “Cash Equivalents” shall also mean  any investment (a “Qualifying Investment”) that satisfies the following two conditions: (x) the  Qualifying Investment is of a type described in clauses (1) through (10) of the first paragraph of  this definition, but has an effective maturity (whether by reason of final maturity, a put option or,  in the case of an asset-backed security, an average life) of five years and one month or less from  the date of such Qualifying Investment (notwithstanding any provision contained in such  clauses (1) through (10) requiring a shorter maturity); and (y) the weighted average effective  maturity of such Qualifying Investment and all other investments that were made as Qualifying  





 






  -8-  US-DOCS\122118934.6  Investments in accordance with this paragraph does not exceed two years from the date of such  Qualifying Investment.  “Change of Control” means the occurrence of any of the following:  (1)  the sale, lease or transfer, in one transaction or a series of related transactions,  of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole,  to any Person; or  (2)  the Issuer becomes aware (by way of a report or any other filing pursuant to  Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the  acquisition by any person or group (within the meaning of Section 13(d)(3) or  Section 14(d)(2) of the Exchange Act, or any successor provision), including any group  acting for the purpose of acquiring, holding or disposing of securities (within the meaning  of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or a series of related  transactions, by way of merger, consolidation or other business combination or purchase  of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or  any successor provision) of more than 50.0% of the voting power of the Voting Stock of  the Issuer;   provided, however, that (1) a transaction in which the Issuer becomes a  Subsidiary of another Person (other than a Person that is an individual, such Person that is  not an individual, the “Other Person”) shall not constitute a Change of Control if (a) the  shareholders “beneficially owning” 100.0% of the voting power of the outstanding  Voting Stock of the Issuer immediately prior to such transaction “beneficially own” (as  such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or  indirectly through one or more intermediaries, at least a majority of the voting power of  the outstanding Voting Stock of the Issuer, immediately following the consummation of  such transaction, and no “person” or “group” (as such terms are defined above)  “beneficially owns” (as such term is defined above) more than 50.0% of the voting power  of the outstanding Voting Stock of the Issuer immediately following such transaction if  such “person” or “group” (as such terms are defined above) did not “beneficially own”  (as such term is defined above) more than 50.0% of the voting power of the outstanding  Voting Stock of the Issuer prior to such transaction or (b) immediately following the  consummation of such transaction, no “person” or “group” (as such terms are defined  above), other than the Other Person (but including the holders of the Equity Interests of  the Other Person), “beneficially owns” (as such term is defined above), directly or  indirectly through one or more intermediaries, more than 50.0% of the voting power of  the outstanding Voting Stock of the Issuer or the Other Person; (2)  the transfer of assets  between or among the Restricted Subsidiaries and the Issuer in accordance with the terms  of this Indenture shall not itself constitute a Change of Control; and (3) a “person” or  “group” (as such terms are defined above) shall not be deemed to “beneficially own” (as  such term is defined above) securities subject to a stock purchase agreement, merger  agreement or similar agreement (or any voting or option agreement related thereto) until  the consummation of the transactions contemplated by such agreement.  





 






  -9-  US-DOCS\122118934.6  “Clearstream” means Clearstream Banking S.A. or any successor securities  clearing agency.   “consolidated” with respect to any Person refers to such Person consolidated with  its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as  if such Unrestricted Subsidiary were not an Affiliate of such Person.  “Consolidated Depreciation and Amortization Expense” means, with respect to  any Person for any period, the total amount of depreciation and amortization expense, including  the amortization of intangibles, deferred financing fees or costs and Capitalized Software  Expenditures of such Person and its Restricted Subsidiaries for such period on a consolidated  basis and otherwise determined in accordance with GAAP.  “Consolidated Interest Expense” means, with respect to any Person for any  period, without duplication:  (1)  consolidated interest expense of such Person and its Restricted Subsidiaries  for such period, to the extent such expense was deducted (and not added back) in  computing Consolidated Net Income (including, but not limited to, (a) all commissions,  discounts and other fees and charges owed with respect to letters of credit or bankers  acceptances accounted for as interest expense, (b) the interest component of Capitalized  Lease Obligations, and (c) net payments, if any, made (less net payments, if any,  received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and  excluding (r) amortization of debt discount and premium, (s) any expense resulting from  the discounting of any Indebtedness in connection with the application of purchase  accounting in connection with any acquisition, (t) penalties and interest relating to taxes,  (u) any “additional interest” owing pursuant to any registration rights agreement with  respect to securities, (v) amortization of deferred financing fees, debt issuance costs,  commissions, fees and expenses, (w) any expensing of bridge, commitment and other  financing fees, (x) commissions, discounts, yield and other fees and charges (including  any interest expense) related to any Qualified Receivables Facility, (y) any accretion of  accrued interest on discounted liabilities) and (z) any other non-cash interest expense;  less  (2)  interest income for such period.  For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to  accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit  in such Capitalized Lease Obligation in accordance with GAAP.  “Consolidated Net Income” means, with respect to any Person for any period, the  aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a  consolidated basis, and otherwise determined in accordance with GAAP; provided that, without  duplication,  (1)  any after-tax effect of extraordinary, infrequent non-recurring or unusual  gains or losses (less all fees and expenses relating thereto) or expenses (including relating  to any multi-year strategic initiatives), Transaction Expenses, severance, relocation costs  





 






  -10-  US-DOCS\122118934.6  and curtailments or modifications to pension and post-retirement employee benefit plans  shall be excluded,  (2)  the Net Income for such period shall not include the cumulative effect of a  change in accounting principles and changes as a result of the adoption or modification of  accounting policies during such period,  (3)  any net after-tax gain or loss on discontinued operations not held for sale, or  disposal of disposed or abandoned operations shall be excluded,  (4)  any after-tax effect of gains or losses (less all fees and expenses relating  thereto) attributable to asset dispositions or abandonments or the sale or other disposition  of any Equity Interests of any Person other than in the ordinary course of business shall  be excluded,  (5)  the Net Income for such period of any Person that is not a Subsidiary, or is an  Unrestricted Subsidiary, or that is accounted for by the equity method of accounting,  shall be excluded; provided that the Consolidated Net Income of the Issuer shall be  increased by the amount of dividends or distributions or other payments actually paid in  cash (or to the extent converted into cash) to the Issuer or a Restricted Subsidiary thereof  in respect of such period,  (6)  the effects of adjustments in the inventory, property and equipment, software,  goodwill, other intangible assets, in-process research and development, deferred revenue,  accrued liabilities, and debt line items in such Person’s consolidated financial statements  prepared in accordance with GAAP resulting from the application of purchase accounting  in relation to any consummated acquisition or the amortization or write-off of any  amounts thereof, net of taxes, shall be excluded,  (7)  any after-tax effect of income (loss) from the early repurchase, redemption or  other extinguishment or amendment of (i) Indebtedness, (ii) interest rate Hedging  Obligations, or (iii) any Convertible Bond Hedge Transaction, Capped Call Transaction  or Warrant Transaction shall be excluded,  (8)  any impairment charge or asset write-off or write-down, including  impairment charges or asset write-offs or write-downs related to intangible assets, long- lived assets, investments in debt and equity securities or as a result of a change in law or  regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising  pursuant to GAAP shall be excluded,   (9)  any non-cash compensation charge or expense, including any such charge  arising from any grant of stock appreciation or similar rights, stock options, restricted  stock, restricted stock units or other rights shall be excluded,  (10) any fees and expenses incurred during such period, or any amortization  thereof for such period, in connection with any acquisition, Investment, Asset Sale,  issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing  transaction or amendment or modification of any debt instrument (in each case, including  





 






  -11-  US-DOCS\122118934.6  any such transaction consummated prior to the Issue Date and any such transaction  undertaken but not completed) and any charges or non-recurring merger costs incurred  during such period as a result of any such transaction shall be excluded, and  (11)  accruals and reserves that are established within twelve months after the  Issue Date that are so required to be established as a result of the Transactions (or within  twelve months after the closing of any acquisition that are so required to be established as  a result of such acquisition) in accordance with GAAP, shall be excluded.   In addition, to the extent not already included in the Consolidated Net Income of  such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the  foregoing, Consolidated Net Income shall include the amount of proceeds received from  business interruption insurance and reimbursements of any expense or charge that is covered by  indemnification or other reimbursement provisions in connection with any Permitted Investment  or any sale, conveyance, transfer or other disposition of assets permitted under this Indenture.  Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only (other  than clause (3)(E) of Section 4.07(a) hereof), there shall be excluded from Consolidated Net  Income any income arising from any sale or other disposition of Restricted Investments made by  the Issuer and its Restricted Subsidiaries, any repurchase or redemption of Restricted  Investments from the Issuer and its Restricted Subsidiaries, any repayment of loans or advance  that constitutes a Restricted Investment by the Issuer or any of its Restricted Subsidiaries, any  sale of the Equity Interests of an Unrestricted Subsidiary or any distribution or dividend from an  Unrestricted Subsidiary, in each case, only to the extent such amounts increase the amount of  Restricted Payments permitted under clause (3)(E) of Section 4.07(a) hereof.  “Consolidated Secured Debt Ratio” means, as of any date of determination, the  ratio of (1) Consolidated Total Indebtedness of the Issuer and its Restricted Subsidiaries that is  secured by Liens on the property of the Issuer and its Restricted Subsidiaries as of the end of the  most recent fiscal quarter for which internal financial statements are available immediately  preceding the date of determination, less the aggregate amount of Cash Equivalents held by the  Issuer and its Restricted Subsidiaries at such date, to (2) the Issuer’s EBITDA for the most  recently ended four full fiscal quarters for which internal financial statements are available  immediately preceding the date of determination, in each case with such pro forma adjustments  to Consolidated Total Indebtedness, Cash Equivalents and EBITDA as are appropriate and  consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge  Coverage Ratio.  “Consolidated Total Debt Ratio” means, as of any date of determination, the ratio  of (1) Consolidated Total Indebtedness of the Issuer and its Restricted Subsidiaries as of the end  of the most recent fiscal quarter for which internal financial statements are available immediately  preceding the date of determination, less the aggregate amount of Cash Equivalents held by the  Issuer and its Restricted Subsidiaries at such date, to (2) the Issuer’s EBITDA for the most  recently ended four full fiscal quarters for which internal financial statements are available  immediately preceding the date of determination, in each case with such pro forma adjustments  to Consolidated Total Indebtedness, Cash Equivalents and EBITDA as are appropriate and  





 






  -12-  US-DOCS\122118934.6  consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge  Coverage Ratio.  “Consolidated Total Indebtedness” means, as at any date of determination, an  amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the  Issuer and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for  borrowed money, Obligations in respect of Capitalized Lease Obligations and debt obligations  evidenced by promissory notes and similar instruments (and excluding, for the avoidance of  doubt, any letter of credit, except to the extent of unreimbursed amounts thereunder, Hedging  Obligations and all obligations relating to Qualified Receivables Facilities), in each case,  determined in accordance with GAAP (but excluding the effects of any discounting of  Indebtedness resulting from the application of purchase accounting in connection with any  acquisition) and (2) the aggregate amount of all outstanding Disqualified Stock of the Issuer and  all Preferred Stock of its Restricted Subsidiaries (other than Preferred Stock held by the Issuer or  a Guarantor) on a consolidated basis, with the amount of such Disqualified Stock and Preferred  Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and  maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance  with GAAP.    “Contingent Obligations” means, with respect to any Person, any obligation of  such Person guaranteeing any leases, dividends or other obligations that do not constitute  Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner,  whether directly or indirectly, including any obligation of such Person, whether or not  contingent,  (1)  to purchase any such primary obligation or any property constituting direct or  indirect security therefor,  (2)  to advance or supply funds  (a)  for the purchase or payment of any such primary obligation, or  (b)  to maintain working capital or equity capital of the primary obligor or  otherwise to maintain the net worth or solvency of the primary obligor, or  (3)  to purchase property, securities or services primarily for the purpose of  assuring the owner of any such primary obligation of the ability of the primary obligor to  make payment of such primary obligation against loss in respect thereof.  “Convertible Bond Hedge Transactions” means one or more call options (or  substantively equivalent derivative transaction) referencing the Issuer’s Equity Interests  purchased by the Issuer (or a Restricted Subsidiary) requiring the counterparty thereto to deliver  to the Issuer or such Restricted Subsidiary shares of common stock of the Issuer, the cash value  of such shares or a combination thereof from time to time upon exercise of such option in  connection with the issuance of Convertible Bond Indebtedness with a strike or exercise price  (howsoever defined) initially equal to the conversion or exchange price (howsoever defined) of  the related Convertible Bond Indebtedness (subject to rounding).  





 






  -13-  US-DOCS\122118934.6  “Convertible Bond Indebtedness” means Indebtedness having a feature which  entitles the holder thereof to convert or exchange all or a portion of such Indebtedness into or by  reference to Equity Interests (other than Disqualified Stock) of the Issuer; and, for the avoidance  of doubt, includes the Convertible Notes.  “Convertible Notes” means the Issuer’s 0.75% Convertible Senior Notes due  2021 issued on September 15, 2015.  “Corporate Trust Office” shall be at the address of the Trustee specified in  Section 12.01 hereof or such other address as to which the Trustee may give notice to the  Holders and the Issuer.  “Credit Facilities” means, with respect to the Issuer or any of its Restricted  Subsidiaries, one or more debt facilities, including the Senior Credit Facility, or other financing  arrangements (including commercial paper facilities or indentures) providing for revolving credit  loans, term loans, letters of credit, capital market financings, receivables financings or other  borrowings or other extensions of credit, including any notes, mortgages, guarantees, collateral  documents, instruments and agreements executed in connection therewith, and any amendments,  supplements, modifications, extensions, renewals, restatements or refundings thereof, in whole  or in part, and any indentures or credit facilities or commercial paper facilities that replace,  refund, supplement or refinance any part of the loans, notes, other credit facilities or  commitments thereunder, including any such replacement, refunding, supplemental or  refinancing facility, arrangement or indenture that increases the amount permitted to be  borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings or  issuances is permitted under Section 4.09 hereof) or adds Restricted Subsidiaries as additional  borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender  or group of lenders or other holders.  “Custodian” means the Trustee, as custodian with respect to the Notes, each in  global form, or any successor entity thereto.  “Default” means any event that is, or with the passage of time, the giving of  notice or both would be, an Event of Default.  “Derivative Instrument” with respect to a Person, means any contract, instrument  or other right to receive payment or delivery of cash or other assets to which such Person or any  Affiliate of such Person that is acting in concert with such Person in connection with such  Person’s investment in the notes (other than a Screened Affiliate) is a party (whether or not  requiring further performance by such Person), the value and/or cash flows of which (or any  material portion thereof) are materially affected by the value and/or performance of the notes  and/or the creditworthiness of the Performance References.  “Definitive Note” means a certificated Note registered in the name of the Holder  thereof and issued in accordance with Section 2.06(c) hereof, substantially in the form of  Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have  the “Schedule of Exchanges of Interests in the Global Note” attached thereto.  





 






  -14-  US-DOCS\122118934.6  “Depositary” means, with respect to the Global Notes representing the Notes, any  Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and  all successors thereto appointed as Depositary hereunder and having become such pursuant to the  applicable provision of this Indenture.  “Designated Non-cash Consideration” means the fair market value of non-cash  consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale  that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate,  setting forth the basis of such valuation less the amount of Cash Equivalents received in  connection with a subsequent sale of or collection on such Designated Non-cash Consideration.  “Designated Preferred Stock” means Preferred Stock of the Issuer (other than  Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee  stock ownership plan or trust established by the Issuer or any of its Subsidiaries) and is so  designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, executed on or  about the issuance date thereof, the cash proceeds of which are excluded from the calculation set  forth in clause (3) of Section 4.07(a) hereof.  “Designated Sale and Lease-Back Transaction” means one or more Sale and  Lease-Back Transactions in an aggregate amount not to exceed $30.0 million at any time  outstanding.  “Disqualified Stock” means, with respect to any Person, any Capital Stock of such  Person which, by its terms, or by the terms of any security into which it is convertible or for  which it is putable or exchangeable, or upon the happening of any event, matures or is  mandatorily redeemable (other than solely as a result of a change of control or asset sale)  pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder  thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in  each case prior to the date 91 days after the earlier of the maturity date of the Notes or the date  the Notes are no longer outstanding; provided that, if such Capital Stock is issued to any plan for  the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees,  such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be  repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory  obligations; provided further that any Capital Stock held by any future, present or former  employee, officer, director, member of management or consultant (or the estate, heirs, family  members, spouse, former spouse, domestic partner or former domestic partner of any of the  foregoing) of the Issuer, any of its Subsidiaries, or any other entity in which the Issuer or a  Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the  board of directors of the Issuer (or the compensation committee thereof) that is redeemable or  subject to repurchase, in each case pursuant to any stock subscription or stockholders’  agreement, management equity plan or stock option plan or any other management or employee  benefit plan or agreement shall not constitute Disqualified Stock solely because it may be  required to be repurchased by the Issuer or its Subsidiaries.  “Domestic Subsidiary” means, with respect to any Person, any Restricted  Subsidiary of such Person other than a Foreign Subsidiary.  





 






  -15-  US-DOCS\122118934.6  “EBITDA” means, with respect to any Person for any period, the Consolidated  Net Income of such Person for such period  (1)  increased (without duplication) by the following, in each case to the extent  deducted in determining Consolidated Net Income for such period:  (a)  provision for taxes based on income, profits or capital gains, including  federal, foreign and state income tax, franchise, excise and similar taxes, and  foreign withholding taxes of such Person paid or accrued during such period  deducted (and not added back) in computing Consolidated Net Income; plus  (b)  Fixed Charges of such Person for such period (including (x) net losses  on Hedging Obligations or other derivative instruments entered into for the  purpose of hedging interest rate risk, (y) bank fees and (z) costs of surety bonds in  connection with financing activities, plus amounts excluded from Consolidated  Interest Expense as set forth in clauses (1)(r) through (z) in the definition thereof)  to the extent the same were deducted (and not added back) in computing  Consolidated Net Income; plus  (c)  Consolidated Depreciation and Amortization Expense of such Person  for such period to the extent the same were deducted (and not added back) in  computing Consolidated Net Income; plus  (d)  any expenses or charges (other than depreciation or amortization  expense) related to any Equity Offering, Permitted Investment, acquisition,  disposition, recapitalization, the incurrence or extinguishment of Indebtedness  permitted to be incurred by this Indenture (including a refinancing thereof)  (whether or not successful) or the entry into, amendment, exercise, termination or  settlement (in whole or in part) of any Convertible Bond Hedge Transaction,  Capped Call Transaction or Warrant Transaction permitted by this Indenture,  including, but not limited to, (i) such fees, expenses or charges related to the  offering of the Notes, the Convertible Notes, any Convertible Bond Hedge  Transaction, Capped Call Transaction or Warrant Transaction, or the Senior  Credit Facility and (ii) any amendment or other modification of the Notes, the  Convertible Notes or the Senior Credit Facility and, in each case, deducted (and  not added back) in computing Consolidated Net Income; plus  (e)  the amount of any restructuring charges, integration costs or other  business optimization expenses, costs associated with establishing new facilities  or reserves deducted (and not added back) in such period in computing  Consolidated Net Income, including any one-time costs incurred in connection  with acquisitions after the Issue Date, and costs related to the closure and/or  consolidation of facilities; plus  (f)  any other non-cash losses or charges, including any write offs or write  downs reducing Consolidated Net Income for such period (provided that if any  such non-cash losses or charges represent an accrual or reserve for potential cash  





 






  -16-  US-DOCS\122118934.6  items in any future period, the cash payment in respect thereof in such future  period shall be subtracted from EBITDA to such extent, and excluding  amortization of a prepaid cash item that was paid in a prior period); plus  (g)  the amount of any minority interest expense consisting of Subsidiary  income attributable to minority equity interests of third parties in any non-Wholly  Owned Subsidiary deducted (and not added back) in such period in computing  Consolidated Net Income; plus  (h)  interest income or investment earnings on retiree medical and  intellectual property, royalty, or license receivables; plus  (i)  the amount of net cost savings, operating expense reductions and  synergies projected by the Issuer in good faith to be realized as a result of  specified actions taken, committed to be taken or expected in good faith to be  taken no later than 24 months after the end of such period (calculated on a pro  forma basis as though such cost savings, operating expense reductions and  synergies had been realized on the first day of such period for which EBITDA is  being determined and as if such cost savings, operating expense reductions and  synergies were realized during the entirety of such period), net of the amount of  actual benefits realized during such period from such actions; provided that such  cost savings are reasonably identifiable and factually supportable; provided  further that the aggregate amount of such net cost savings, operating expense  reductions, and synergies added back pursuant to this clause (i) for any applicable  measurement period shall not exceed 25.0% of EBITDA for such period  calculated immediately before giving effect to the add back in this clause (i); plus  (j)  the amount of loss on sale of receivables, Receivables Assets and  related assets to the Receivables Subsidiary in connection with a Qualified  Receivables Facility; plus  (k)  any costs or expense incurred by the Issuer or a Restricted Subsidiary  pursuant to any management equity plan or stock option plan or any other  management or employee benefit plan or agreement or any stock subscription or  shareholder agreement, to the extent that such cost or expenses are funded with  cash proceeds contributed to the capital of the Issuer or net cash proceeds of an  issuance of Equity Interests of the Issuer (other than Disqualified Stock) solely to  the extent that such net cash proceeds are excluded from the calculation set forth  in clause (3) of Section 4.07(a) hereof; plus  (l)  cash receipts (or any netting arrangements resulting in reduced cash  expenditures) not representing EBITDA or Net Income in any period to the extent  non-cash gains relating to such income were deducted in the calculation of  EBITDA pursuant to clause (2) below for any previous period and not added  back; plus  





 






  -17-  US-DOCS\122118934.6  (m)  any net loss from discontinued operations not held for sale, or  disposed or abandoned operations;  (2)  decreased (without duplication) by the following, in each case to the extent  included in determining Consolidated Net Income for such period:  (a)  non-cash gains increasing Consolidated Net Income of such Person for  such period, excluding any non-cash gains to the extent they represent the reversal  of an accrual or reserve for a potential cash item that reduced EBITDA in any  prior period and any non-cash gains with respect to cash actually received in a  prior period so long as such cash did not increase EBITDA in such prior period;  plus  (b)  any net income from discontinued operations not held for sale, or  disposed or abandoned operations.   Whenever a percentage of EBITDA is being used in this Indenture to determine  the amount of any basket, carve-out or exception or any component thereof, EBITDA means the  EBITDA of the Issuer and its Restricted Subsidiaries on a consolidated basis for the most  recently ended four fiscal quarters for which internal financial statements are available  immediately preceding the date as of which the determination is made, with such pro forma  adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth  in the definition of Fixed Charge Coverage Ratio.  “EMU” means economic and monetary union as contemplated in the Treaty on  European Union.  “Equity Interests” means Capital Stock and all options, warrants, restricted stock  units or other rights to acquire Capital Stock, but excluding any debt security that is convertible  into, or exchangeable for, Capital Stock, and excluding, for the avoidance of doubt, Convertible  Bond Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions, and  Warrant Transactions.  “Equity Offering” means any public or private sale of common stock or Preferred  Stock of the Issuer (excluding Disqualified Stock), other than:  (1)  public offerings with respect to the Issuer’s common stock registered on  Form S-4 or Form S-8;  (2)  issuances to any Subsidiary of the Issuer; and  (3)  any such public or private sale that constitutes an Excluded Contribution.  “Euroclear” means Euroclear Bank SA/NV or any successor clearing agency.   “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the  rules and regulations of the SEC promulgated thereunder.  





 






  -18-  US-DOCS\122118934.6  “Excluded Contribution” means net cash proceeds, marketable securities or  Qualified Proceeds received by the Issuer from  (1)  contributions to its common equity capital, and  (2)  the sale (other than to a Subsidiary of the Issuer or to any management equity  plan or stock option plan or any other management or employee benefit plan or  agreement of the Issuer) of Capital Stock (other than Disqualified Stock and Designated  Preferred Stock) of the Issuer,  in each case, designated as Excluded Contributions pursuant to an Officer’s Certificate executed  on or about the date such capital contributions are made or the date such Equity Interests are  sold, as the case may be, which are excluded from the calculation set forth in clause (3) of  Section 4.07(a) hereof.  “fair market value” means, with respect to any asset or liability, the fair market  value of such asset or liability as determined by the Issuer in good faith.   “Fixed Charge Coverage Ratio” means, with respect to any Person for any  period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person  for such period.  In the event that the Issuer or any Restricted Subsidiary incurs, assumes,  guarantees, redeems, repays, retires or extinguishes any Indebtedness (other than Indebtedness  incurred or repaid under any revolving credit facility unless such Indebtedness has been  permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or  Preferred Stock subsequent to the commencement of the period for which the Fixed Charge  Coverage Ratio is being calculated but prior to or simultaneously with the event for which the  calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Coverage Ratio  Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma  effect to such incurrence, assumption, guarantee, redemption, repayment, retirement or  extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or  Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter  period.  For purposes of making the computation described in the prior paragraph of this  definition, Investments, acquisitions, dispositions, mergers, consolidations and disposed  operations (as determined in accordance with GAAP) that have been made by the Issuer or any  of its Restricted Subsidiaries during the four-quarter reference period or subsequent to such  reference period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio  Calculation Date shall be calculated on a pro forma basis assuming that all such Investments,  acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in  any associated fixed charge obligations and the change in EBITDA resulting therefrom) had  occurred on the first day of the four-quarter reference period.  If since the beginning of such  period any Person that subsequently became a Restricted Subsidiary or was merged with or into  the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have  made any Investment, acquisition, disposition, merger, consolidation or disposed operation that  would have required adjustment pursuant to this definition, then the Fixed Charge Coverage  Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment,  





 






  -19-  US-DOCS\122118934.6  acquisition, disposition, merger, consolidation or disposed operation had occurred at the  beginning of the applicable four-quarter period.  For purposes of this definition, whenever pro forma effect is to be given to any  Investment, acquisition, disposition, merger, consolidation or disposed operation and the amount  of income or earnings relating thereto, the pro forma calculations shall be made in good faith by  a responsible financial or accounting officer of the Issuer (and may include, for the avoidance of  doubt, cost savings, operating expense reductions and synergies resulting from such Investment,  acquisition, disposition, merger, consolidation or disposed operation which is being given pro  forma effect that have been or are expected to be realized).  If any Indebtedness bears a floating  rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be  calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been  the applicable rate for the entire period (taking into account any Hedging Obligations applicable  to such Indebtedness).  Interest on a Capitalized Lease Obligation shall be deemed to accrue at  an interest rate reasonably determined by a responsible financial or accounting officer of the  Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with  GAAP.  For purposes of making the computations discussed in this definition, interest on any  Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed  based upon the average daily balance of such Indebtedness during the applicable period except as  set forth in the first paragraph of this definition.  Interest on Indebtedness that may optionally be  determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency  interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually  chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.  “Fixed Charges” means, with respect to any Person for any period, the sum of,  without duplication:  (1)  Consolidated Interest Expense of such Person for such period;  (2)  all cash dividends or other distributions paid (excluding items eliminated in  consolidation) on any series of Preferred Stock during such period; and  (3)  all cash dividends or other distributions paid (excluding items eliminated in  consolidation) on any series of Disqualified Stock during such period.  “Foreign Subsidiary” means, with respect to any Person, any Restricted  Subsidiary of such Person that is not organized or existing under the laws of the United States,  any state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign  Subsidiary.  “GAAP” means generally accepted accounting principles in the United States set  forth in the opinions and pronouncements of the Accounting Principles Board and the American  Institute of Certified Public Accountants and statements and pronouncements of the Financial  Accounting Standards Board or such other principles as may be approved by a significant  segment of the accounting profession in the United States, which are in effect on the Issue Date,  but without giving effect to Accounting Standards Update (ASU) No. 2016-02 and Accounting  Standards Codification (ASC) 842 and related interpretations.  





 






  -20-  US-DOCS\122118934.6  “Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof,  which is required to be placed on all Global Notes issued under this Indenture.  “Global Notes” means, individually and collectively, each of the Restricted  Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A hereto,  issued in accordance with Sections 2.01, 2.06(b) or 2.06(d) hereof.  “guarantee” means a guarantee (other than by endorsement of negotiable  instruments for collection in the ordinary course of business), direct or indirect, in any manner  (including letters of credit and reimbursement agreements in respect thereof), of all or any part of  any Indebtedness or other obligations.  “Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations  under this Indenture and the Notes.  “Guarantor” means each Person that Guarantees the Notes in accordance with the  terms of this Indenture.  “Hedging Obligations” means, with respect to any Person, the obligations of such  Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar  agreement, commodity swap agreement, commodity cap agreement, commodity collar  agreement, foreign exchange contract, currency swap agreement or similar agreement providing  for the transfer or mitigation of interest rate, commodity price or currency risks either generally  or under specific contingencies, which excludes, for the avoidance of doubt, Convertible Bond  Hedge Transactions, Capped Call Transactions and Warrant Transactions, and any arrangements  or agreements related thereto, and accelerated share repurchase contract, forward share purchase  contract or similar contract with respect to the purchase by the Issuer of its Equity Interests.  “Holder” means the Person in whose name a Note is registered on the Registrar’s  books.  “Indebtedness” means, with respect to any Person, without duplication:  (1)  any indebtedness (including principal and premium) of such Person, whether  or not contingent:  (a)  in respect of borrowed money;  (b)  evidenced by bonds (excluding performance, payment and other  surety bonds incurred in the ordinary course of business), notes, debentures or  similar instruments or letters of credit or bankers’ acceptances (or, without  duplication, reimbursement agreements in respect thereof);  (c)  representing the balance deferred and unpaid of the purchase price of  any property (including Capitalized Lease Obligations), except (i) any such  balance that constitutes an obligation in respect of a commercial letter of credit, a  trade payable or similar obligation to a trade creditor, in each case accrued in the  ordinary course of business and (ii) any earn-out obligations until such obligation  





 






  -21-  US-DOCS\122118934.6  becomes a liability on the balance sheet of such Person in accordance with GAAP  and is not paid after becoming due and payable; or  (d)  representing any Hedging Obligations,  if and to the extent that any of the foregoing Indebtedness (other than letters of credit and  Hedging Obligations) would appear as a liability upon a balance sheet (excluding the  footnotes thereto) of such Person prepared in accordance with GAAP;  (2)  to the extent not otherwise included, any obligation by such Person to be  liable for, or to pay, as obligor, guarantor or otherwise, any obligation of the type referred  to in clause (1) above of a third Person (whether or not such item would appear upon the  balance sheet of such obligor or guarantor), other than by endorsement of a negotiable  instrument for collection in the ordinary course of business; and  (3)  to the extent not otherwise included, any obligation of the type referred to in  clause (1) above of a third Person secured by a Lien on any asset owned by such first  Person, whether or not such Indebtedness is assumed by such first Person;  provided that, notwithstanding the foregoing, Indebtedness shall be deemed not to include  (a) Contingent Obligations incurred in the ordinary course of business, (b) any operating lease or  operating lease liability, (c) obligations under or in respect of Qualified Receivables Facilities or  Sale and Lease-Back Transactions (except any resulting Capitalized Lease Obligations), or (d)  any Convertible Bond Hedge Transaction, Capped Call Transaction or Warrant Transaction;  provided further that Indebtedness shall be calculated without giving effect to the effects of  Accounting Standards Codification topic 815 and related interpretations to the extent such effects  would otherwise increase or decrease an amount of Indebtedness for any purpose under this  Indenture as a result of accounting for any embedded derivatives created by the terms of such  Indebtedness.  “Indenture” means this Indenture, as amended or supplemented from time to time.  “Independent Financial Advisor” means an accounting, appraisal, investment  banking firm or consultant of nationally recognized standing and is, in the good-faith judgment  of the Issuer, qualified to perform the task for which it has been engaged.  “Indirect Participant” means a Person who holds a beneficial interest in a Global  Note through a Participant.  “Initial Notes” is defined in the recitals hereto.  “Initial Purchaser” means any of BofA Securities, Inc., Goldman Sachs & Co.  LLC, Truist Securities, Inc., Wells Fargo Securities, LLC, BMO Capital Markets Corp., Capital  One Securities, Inc., Citizens Capital Markets, Inc., MUFG Securities Americas Inc., Fifth Third  Securities, Inc., PNC Capital Markets LLC or TD Securities (USA) LLC.   “Interest Payment Date” means April 15 and October 15 of each year to stated  maturity.  





 






  -22-  US-DOCS\122118934.6  “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the  equivalent) by Moody’s or BBB- (or the equivalent) by S&P, or an equivalent rating by any  other Rating Agency or nationally recognized statistical rating agency.  “Investment Grade Securities” means:  (1)  securities issued or directly and fully guaranteed or insured by the United  States government or any agency or instrumentality thereof (other than Cash  Equivalents);  (2)  debt securities or debt instruments with an Investment Grade Rating, but  excluding any debt securities or instruments constituting loans or advances among the  Issuer and its Subsidiaries;  (3)  investments in any fund that invests exclusively in investments of the type  described in clauses (1) and (2), which fund may also hold immaterial amounts of cash  from time to time pending investment or distribution; and  (4)  corresponding instruments in countries other than the United States  customarily utilized for high quality investments.  “Investments” means, with respect to any Person, all investments by such Person  in other Persons (including Affiliates) in the form of loans (including guarantees), advances or  capital contributions (excluding accounts receivable, trade credit, advances and extensions of  credit to customers and vendors, and commission, travel and similar advances to officers,  employees, directors and consultants, in each case made in the ordinary course of business),  purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other  securities issued by any other Person and investments that are required by GAAP to be classified  on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other  investments included in this definition to the extent such transactions involve the transfer of cash  or other property.  In no event shall a guarantee of an operating lease or other business contract  of the Issuer or any Restricted Subsidiary be deemed an Investment.  For purposes of the  definition of “Unrestricted Subsidiary” and Section 4.07 hereof:  (1)  “Investments” shall include the portion (proportionate to the Issuer’s equity  interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of  the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary;  provided that, upon a redesignation of such Subsidiary as a Restricted Subsidiary, the  Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted  Subsidiary in an amount (if positive) equal to:  (a)  the Issuer’s “Investment” in such Subsidiary at the time of such  redesignation; less  (b)  the portion (proportionate to the Issuer’s Equity Interest in such  Subsidiary) of the fair market value of the net assets of such Subsidiary at the  time of such redesignation; and  





 






  -23-  US-DOCS\122118934.6  (2)  any property transferred to or from an Unrestricted Subsidiary shall be valued  at its fair market value at the time of such transfer.  The amount of any Investment outstanding at any time shall be the original cost of  such Investment, reduced by any dividend, distribution, interest payment, return of capital,  repayment or other amount received in cash by the Issuer or a Restricted Subsidiary in respect of  such Investment.  “Issue Date” means April 1, 2021.  “Issuer” means Dycom Industries, Inc., a Florida corporation, and any successor  Person, in accordance with Section 5.02 hereof.  “Issuer Order” means a written request or order signed on behalf of the Issuer by  an Officer of the Issuer, who must be the principal executive officer, the principal financial  officer, the treasurer or the principal accounting officer of the Issuer, and delivered to the  Trustee.  “Legal Holiday” means a Saturday, a Sunday or a day on which commercial  banking institutions are not required to be open in the State of New York or, to the extent  applicable, in the place of payment.  “Lien” means, with respect to any asset, any mortgage, lien (statutory or  otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance  of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under  applicable law, including any conditional sale or other title retention agreement, any lease in the  nature thereof, any option or other agreement to sell or give a security interest in and any filing  of or agreement to give any financing statement under the Uniform Commercial Code (or  equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be  deemed to constitute a Lien.  “Long Derivative Instrument” means a Derivative Instrument (i) the value of  which generally increases, and/or the payment or delivery obligations under which generally  decrease, with positive changes to the Performance References and/or (ii) the value of which  generally decreases, and/or the payment or delivery obligations under which generally increase,  with negative changes to the Performance References.  “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating  agency business.  “Net Cash Proceeds” means the aggregate cash proceeds received by the Issuer or  any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon  the sale or other disposition of any Designated Non-cash Consideration received in any Asset  Sale, net of the direct costs relating to such Asset Sale and the sale or disposition of such  Designated Non-cash Consideration, including legal, accounting and investment banking fees,  and brokerage and sales commissions, any relocation expenses incurred as a result thereof, taxes  paid or payable as a result thereof (after taking into account any available tax credits or  deductions and any tax sharing arrangements), amounts required to be applied to the repayment  





 






  -24-  US-DOCS\122118934.6  of principal, premium, if any, and interest on Senior Indebtedness required or amounts required  to be applied to the repayment of Indebtedness secured by a Lien on such assets (other than  required by clause (1) of Section 4.10(b) hereof) to be paid as a result of such transaction and  any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted  Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the  asset disposed of in such transaction and retained by the Issuer or any of its Restricted  Subsidiaries after such sale or other disposition thereof, including pension and other  post-employment benefit liabilities and liabilities related to environmental matters or against any  indemnification obligations associated with such transaction. Net Cash Proceeds shall not  include any cash payments held in escrow until such time as such amounts are released from  escrow.  “Net Income” means, with respect to any Person, the net income (loss) of such  Person, determined in accordance with GAAP and before any reduction in respect of Preferred  Stock dividends.  “Net Short” means, with respect to a Holder or beneficial owner, as of a date of  determination, either (i) the value of its Short Derivative Instruments exceeds the sum of the (x)  the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of  determination or (ii) it is reasonably expected that such would have been the case were a Failure  to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives  Definitions) to have occurred with respect to the Issuer or any Guarantor immediately prior to  such date of determination.  “Non-U.S. Person” means a Person who is not a U.S. Person.  “Notes” means the Initial Notes and more particularly means any Note  authenticated and delivered under this Indenture.  For all purposes of this Indenture, the term  “Notes” shall also include any Additional Notes that may be issued under a supplemental  indenture.  The Notes shall be treated as a single class for all purposes under this Indenture.    “Obligations” means any principal, interest (including any interest accruing  subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the  rate provided for in the documentation with respect thereto, whether or not such interest is an  allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications,  reimbursements (including reimbursement obligations with respect to letters of credit and  banker’s acceptances), damages and other liabilities, and guarantees of payment of such  principal, interest, penalties, fees, indemnifications, reimbursements, damages and other  liabilities, payable under the documentation governing any Indebtedness.  “Offering Memorandum” means the confidential offering memorandum, dated  March 25, 2021, relating to the sale of the Initial Notes.  “Officer” means the Chief Executive Officer, the Chief Financial Officer, the  President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer  or the Secretary of the Issuer or any other officer of the Issuer designated by any of the foregoing  individuals.  





 






  -25-  US-DOCS\122118934.6  “Officer’s Certificate” means a certificate signed on behalf of the Issuer by an  Officer of the Issuer, who must be the principal executive officer, the principal financial officer,  the treasurer or the principal accounting officer of the Issuer, that meets the requirements set  forth in this Indenture.  “Opinion of Counsel” means a written opinion from legal counsel which is  acceptable to the Trustee.  The counsel may be an employee of or counsel to the Issuer.  “Performance References” means the Issuer and/or any one or more of the  Guarantors.  “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a  Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and,  with respect to DTC, shall include Euroclear and Clearstream).  “Permitted Asset Swap” means the substantially concurrent purchase and sale or  exchange of Related Business Assets or a combination of Related Business Assets and Cash  Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided  that any Cash Equivalents received must be applied in accordance with Section 4.10 hereof.  “Permitted Investments” means:  (1) any Investment in the Issuer or any of its Restricted Subsidiaries, including in  the notes and Guarantees and the Convertible Notes and any other Indebtedness or  Capital Stock of the Issuer and any Restricted Subsidiary that does not otherwise  constitute a Restricted Payment;  (2)  any Investment in Cash Equivalents or Investment Grade Securities;  (3)  any Investment by the Issuer or any of its Restricted Subsidiaries in a Person  (including, to the extent constituting an Investment, in assets of a Person that represent  substantially all of its assets or a division, business unit or product line) if as a result of  such Investment:  (a)  such Person becomes a Restricted Subsidiary; or  (b)  such Person, in one transaction or a series of related transactions, is  merged or consolidated with or into, or transfers or conveys substantially all of its  assets (or such division, business unit or product line) to, or is liquidated into, the  Issuer or a Restricted Subsidiary,  and, in each case, any Investment held by such Person; provided that such Investment  was not acquired by such Person in contemplation of such acquisition, merger,  consolidation or transfer;  (4)  any Investment in securities or other assets not constituting Cash Equivalents  or Investment Grade Securities and received in connection with an Asset Sale made  





 






  -26-  US-DOCS\122118934.6  pursuant to the provisions described under Section 4.10 hereof or any other disposition of  assets not constituting an Asset Sale;  (5)  any Investment existing on the Issue Date or made pursuant to binding  commitments in effect on the Issue Date or an Investment consisting of any modification,  replacement, renewal, reinvestment or extension of any such Investment or binding  commitment existing on the Issue Date; provided that the amount of any such Investment  may be increased in such modification, replacement, renewal, reinvestment or extension  only (a) as required by the terms of such Investment or binding commitment as in  existence on the Issue Date or (b) as otherwise permitted under this Indenture;  (6)  any Investment acquired by the Issuer or any of its Restricted Subsidiaries:  (a)  in exchange for any other Investment or accounts receivable held by  the Issuer or any such Restricted Subsidiary in connection with or as a result of a  bankruptcy, workout, reorganization or recapitalization of the issuer of such other  Investment or accounts receivable (including any trade creditor or customer);   (b)  as a result of the settlement, compromise or resolution of litigation,  arbitration or other disputes with Persons who are not Affiliates;   (c)  in settlement of delinquent obligations of, or other disputes with,  customers, trade debtors, licensors, licensees and suppliers arising in the ordinary  course of business; or  (d)  as a result of a foreclosure by the Issuer or any of its Restricted  Subsidiaries with respect to any secured Investment or other transfer of title with  respect to any secured Investment in default;  (7)  Hedging Obligations permitted under clause (10) of Section 4.09(b) hereof   and, to the extent constituting Investments, Investments in Convertible Bond Hedge  Transactions, Capped Call Transactions and Warrant Transactions;  (8)  any Investment in a Similar Business having an aggregate fair market value,  taken together with all other Investments made pursuant to this clause (8), that are at the  time outstanding, not to exceed the greater of $50.0 million and 15.0% of EBITDA (in  each case, determined on the date such Investment is made, with the fair market value of  each Investment being measured at the time made and without giving effect to  subsequent changes in value); provided, however, that, if any Investment pursuant to this  clause (8) is made in any Person that is not a Restricted Subsidiary of the Issuer at the  date of the making of such Investment and such Person becomes a Restricted Subsidiary  after such date, such Investment shall thereafter be deemed to have been made pursuant  to clause (1) above and shall cease to have been made pursuant to this clause (8);  (9)  Investments in Unrestricted Subsidiaries having an aggregate fair market  value, taken together with all other Investments made pursuant to this clause (9) that are  at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to  the extent the proceeds of such sale do not consist of cash or marketable securities (until  





 






  -27-  US-DOCS\122118934.6  such proceeds are converted to Cash Equivalents), not to exceed the greater of $50.0  million and 15.0% of EBITDA at the time of such Investment (with the fair market value  of each Investment being measured at the time made and without giving effect to  subsequent changes in value);  (10)  Investments the payment for which consists of Equity Interests (exclusive of  Disqualified Stock) of the Issuer; provided that such Equity Interests will not increase the  amount available for Restricted Payments under clause (3) of Section 4.07(a) hereof;  (11)  guarantees of Indebtedness not prohibited by Section 4.09 hereof;  performance guarantees in the ordinary course of business and the creation of Liens on  the assets of the Issuer or any of its Restricted Subsidiaries in compliance with  Section 4.12 hereof;  (12)  any transaction to the extent it constitutes an Investment that is permitted  and made in accordance with the provisions of Section 4.11(b) hereof (except  transactions described in clauses (2), (4) and (6) of Section 4.11(b) hereof);  (13)  Investments consisting of purchases and acquisitions of inventory, supplies,  material, equipment or other assets or services or the licensing or contribution of  intellectual property pursuant to joint marketing arrangements with other Persons;  (14)  Investments having an aggregate fair market value, taken together with all  other Investments made pursuant to this clause (14) that are at the time outstanding  (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds  of such sale do not consist of cash or marketable securities), not to exceed the greater of  $140.0 million and 40.0% of EBITDA at the time of such Investment (with the fair  market value of each Investment being measured at the time made and without giving  effect to subsequent changes in value); provided, however, that, if any Investment  pursuant to this clause (14) is made in any Person that is not a Restricted Subsidiary of  the Issuer at the date of the making of such Investment and such Person becomes a  Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have  been made pursuant to clause (1) above and shall cease to have been made pursuant to  this clause (14);  (15)  Investments in or relating to a Receivables Subsidiary or Receivables Assets  that, in the good-faith determination of the Issuer are necessary or advisable to effect any  Qualified Receivables Facility or any repurchase obligation in connection therewith;  (16)  advances to, or guarantees of Indebtedness of, officers, directors, employees  or members of management not in excess of $15.0 million outstanding at any time, in the  aggregate;  (17)  loans and advances to officers, directors, employees, members of  management and consultants for business-related travel expenses, moving expenses and  other similar expenses or payroll advances, in each case incurred in the ordinary course  of business or consistent with past practices or to fund such Person’s purchase of Equity  Interests of the Issuer;   





 






  -28-  US-DOCS\122118934.6  (18)  advances, loans or extensions of trade credit in the ordinary course of  business or consistent with past practice by the Issuer or any of its Restricted  Subsidiaries;  (19)  Investments in the ordinary course of business or consistent with past  practice consisting of Uniform Commercial Code (or equivalent statutes) Article 3  endorsements for collection of deposit, Article 4 customary trade arrangements with  customers and in accounts, contract rights and chattel paper, notes receivable and similar  items arising or acquired from the sale of inventory;   (20)  Investments in joint ventures of the Issuer or any of its Restricted  Subsidiaries, taken together with all other Investments made pursuant to this clause (20)  that are at the time outstanding, not to exceed the greater of $75.0 million and 20.0% of  EBITDA (in each case, determined on the date such Investment is made, with the fair  market value of each Investment being measured at the time made and without giving  effect to subsequent changes in value);  (21)  any Investment in or by any Captive Insurance Subsidiary in connection  with the provision of insurance to the Issuer or any of its Subsidiaries, which Investment  is made in the ordinary course of business or consistent with past practice of such Captive  Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is  required or approved by any regulatory authority having jurisdiction over such Captive  Insurance Subsidiary or its business, as applicable;  (22) any assignment of intellectual property from the Issuer or any Restricted  Subsidiary to any Unrestricted Subsidiary if, at the time of such assignment, such  intellectual property has not been registered with the U.S. Patent and Trademark Office,  the U.S. Copyright Office or any other governmental authority in the United States or any  other jurisdiction; and  (23)  Investments made or received in order to facilitate the Transactions.  For purposes of determining compliance with this definition, in the event that a proposed  Investment (or a portion thereof) meets the criteria of clauses (1) through (23) above, the  Issuer will be entitled to divide or classify or later divide or reclassify (based on  circumstances existing on the date of such reclassification) such Investment (or a portion  thereof) between such clauses (1) through (23) in any manner that otherwise complies  with this definition.  “Permitted Liens” means, with respect to any Person:  (1)  pledges or deposits by such Person under workmen’s compensation laws,  unemployment insurance, employers’ health tax and other social security laws or similar  legislation, or other insurance-related obligations or indemnification obligations to  (including obligations in respect of letters of credit or bank guarantees for the benefit of)  insurance carriers in the ordinary course of business or good-faith pledges or deposits in  connection with bids, tenders, contracts (other than for the payment of Indebtedness),  sales or leases to which such Person is a party, or pledges or deposits to secure public or  





 






  -29-  US-DOCS\122118934.6  statutory obligations of such Person or pledges or deposits of cash or government bonds  to secure surety appeal or customs bonds to which such Person is a party, or deposits as  security for contested taxes or import duties or for the payment of rent, in each case,  incurred in the ordinary course of business;  (2)  Liens imposed by law, such as landlords’, carriers’, warehousemen’s,  mechanics’, materialmen’s, repairmen’s, construction contractors or other like Liens, in  each case for sums not yet overdue for a period of more than 90 days or if more than 90  days overdue, are unfiled and no other action has been taken to enforce such Lien or are  being contested in good faith by appropriate proceedings or other Liens arising out of  judgments or awards against such Person with respect to which such Person shall then be  proceeding with an appeal or other proceedings for review if adequate reserves with  respect thereto are maintained on the books of such Person in accordance with GAAP;  (3)  Liens for taxes, assessments, charges or other governmental levies not yet  overdue for a period of more than 30 days or payable or subject to penalties for  nonpayment or which are being contested in good faith by appropriate actions diligently  conducted, if adequate reserves with respect thereto are maintained on the books of such  Person in accordance with GAAP;  (4)  Liens to secure self-insurance and obligations in respect of performance,  surety, bid, indemnity, warranty, release, appeal, or similar bonds and performance and  completion guarantees and similar obligations of the Issuer or any of its Restricted  Subsidiaries or to secure obligations in respect of letters of credit, bank guarantees or  similar instruments related thereto or otherwise in the ordinary course of business, and to  secure obligations arising under any indemnity agreement relating thereto, in each case,  in the ordinary course of its business or consistent with past practice;  (5)  minor survey exceptions, minor encumbrances, ground leases, easements or  reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric  lines, drains, cable television, telegraph and telephone lines and other similar purposes, or  zoning, building codes or other restrictions (including minor defects and irregularities in  title and similar encumbrances) as to the use of real properties or Liens incidental, to the  conduct of the business of such Person or to the ownership of its properties which were  not incurred in connection with Indebtedness and which do not in the aggregate  materially interfere with the ordinary conduct of the business of such Person;  (6)  Liens securing Indebtedness permitted to be incurred pursuant to clause (4)   or (23) of Section 4.09(b) hereof; provided that (a) Liens securing Obligations related to  any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred or  issued pursuant to clause (4) of Section 4.09(b) hereof extend only to the assets, the  acquisition, construction, repair, replacement or improvement of which is financed  thereby, and any replacements thereof, additions and accessions thereto and any income  or profits thereof; provided, further, that individual financings or assets provided by one  lender or group of lenders may be cross collateralized to other financings of assets by  such lender or group of lenders;  and (b) Liens securing Obligations related to any  Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred or issued  





 






  -30-  US-DOCS\122118934.6  pursuant to clause (23) of Section 4.09(b) hereof extend only to the assets of such Foreign  Subsidiaries;  (7)  Liens existing on the Issue Date (other than under the Senior Credit Facility);  (8)  Liens on property or shares of stock or other assets of a Person at the time  such Person becomes a Subsidiary; provided that such Liens are not created or incurred in  connection with, or in contemplation of, such other Person becoming such a Subsidiary;  provided further that such Liens may not extend to any other property or other assets  owned by the Issuer or any of its Restricted Subsidiaries (other than the proceeds or  products of such property or shares of stock or improvements thereon or replacements  thereof);  (9)  Liens on property or other assets at the time the Issuer or a Restricted  Subsidiary acquired the property or such other assets, including any acquisition by means  of a merger or consolidation with or into the Issuer or any of its Restricted Subsidiaries;  provided that such Liens are not created or incurred in connection with, or in  contemplation of, such acquisition, merger or consolidation; provided further that the  Liens may not extend to any other property owned by the Issuer or any of its Restricted  Subsidiaries (other than the proceeds or products of such property or assets or  improvements thereon or replacements thereof);  (10)  Liens securing Indebtedness or other obligations of a Restricted Subsidiary  owing to the Issuer or another Restricted Subsidiary permitted to be incurred in  accordance with Section 4.09 hereof;  (11)  Liens securing (i) Hedging Obligations and (ii) obligations in respect of  Bank Products, in each case, permitted to be incurred in accordance with Section 4.09  hereof;  (12)  Liens on specific items of inventory or other goods and the proceeds thereof  securing such Person’s obligations in respect of documentary letters of credit or bankers’  acceptances issued or created for the account of such Person to facilitate the purchase,  shipment or storage of such inventory or other goods;  (13)  leases, subleases, licenses or sublicenses granted to others in the ordinary  course of business which do not interfere in any material respect with the business of the  Issuer or any of its Restricted Subsidiaries;  (14)  Liens arising from Uniform Commercial Code (or equivalent statutes)  financing statement filings or similar or analogous financing statements in any  jurisdiction regarding operating leases, consignment, asset sales, or factoring  arrangements entered into by the Issuer and its Restricted Subsidiaries in the ordinary  course of business or purported Liens evidenced by the filing of precautionary Uniform  Commercial Code financing statements or similar or analogous financing statements in  any jurisdiction or similar public filings;  (15)  Liens in favor of the Issuer or any Guarantor;  





 






  -31-  US-DOCS\122118934.6  (16)  Liens on equipment of the Issuer or any of its Restricted Subsidiaries  granted in the ordinary course of business to clients of the Issuer or any of its Restricted  Subsidiaries;  (17)  Liens on accounts receivable, Receivables Assets and related assets incurred  in connection with a Qualified Receivables Facility and precautionary Liens on  Receivables Assets against the transferor of such Receivables Assets;  (18)  Liens to secure any modification, refinancing, refunding, extension, renewal  or replacement (or successive refinancings, refundings, extensions, renewals or  replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to  in the foregoing clauses (6), (7), (8), (9), (10), (11) and this clause (18); provided that  (a) such new Lien shall be limited to all or part of the same property that secured the  original Lien (plus improvements on, and replacements of, such property and the  products and proceeds thereof), and (b) the Indebtedness secured by such Lien at such  time is not increased to any amount greater than the sum of (i) the outstanding principal  amount or, if greater, committed amount of the Indebtedness described under such  clauses (6), (7), (8), (9), (10) and (11) at the time the original Lien became a Permitted  Lien under this Indenture, and (ii) an amount necessary to pay any fees and expenses,  including premiums, related to such refinancing, refunding, extension, renewal or  replacement;  (19)  deposits made or other security in the ordinary course of business to secure  liability to insurance carriers;   (20)  Liens securing judgments for the payment of money not constituting an  Event of Default under clause (5) of Section 6.01 hereof;  (21)  Liens in favor of customs and revenue authorities arising as a matter of law  to secure payment of customs duties in connection with the importation of goods in the  ordinary course of business;  (22)  Liens (i) of a collection bank arising under Section 4-210 of the Uniform  Commercial Code (or equivalent statutes) on items in the course of collection,  (ii) attaching to commodity trading accounts or other commodity brokerage accounts  incurred in the ordinary course of business, and (iii) in favor of banking institutions  arising as a matter of law or under general terms and conditions encumbering deposits  (including the right of set-off) and which are within the general parameters customary in  the banking industry;  (23)  Liens deemed to exist in connection with Investments in repurchase  agreements permitted under Section 4.09 hereof;  (24)  Liens encumbering reasonable customary initial deposits and margin  deposits and similar Liens attaching to commodity trading accounts or other brokerage  accounts incurred in the ordinary course of business and not for speculative purposes;  





 






  -32-  US-DOCS\122118934.6  (25)  Liens that are contractual rights of set-off (i) relating to the establishment of  depository relations with banks not given in connection with the issuance of  Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Issuer or any of its  Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred  in the ordinary course of business of the Issuer and its Restricted Subsidiaries or  (iii) relating to purchase orders and other agreements entered into with customers of the  Issuer or any of its Restricted Subsidiaries in the ordinary course of business;  (26)  Liens securing obligations owed by the Issuer or any Restricted Subsidiary  to any lender under the Senior Credit Facility or any Affiliate of such a lender in respect  of any Bank Products;  (27) Liens on cash and Cash Equivalents deposited to repay, repurchase or  otherwise discharge Indebtedness;  (28)  any encumbrance or restriction (including put and call arrangements) with  respect to capital stock of any joint venture or similar arrangement pursuant to any joint  venture or similar agreement;  (29)  Liens on the Equity Interests and Indebtedness of an Unrestricted Subsidiary  or a Receivables Subsidiary that secure Indebtedness or other obligations of such  Unrestricted Subsidiary, or Receivables Subsidiary, respectively;  (30)  (i) Liens on cash advances in favor of the seller of any property to be  acquired in an Investment permitted under this Indenture to be applied against the  purchase price for such Investment and (ii) customary restrictions or dispositions of  assets to be disposed of pursuant to merger agreements, stock or asset purchase  agreements and similar agreements;  (31)  any interest or title of a lessor, sub-lessor, licensor or sub-licensor secured  by a lessor’s, sub-lessor’s, licensor’s or sub-licensor’s interest under leases or licenses  entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of  business;  (32)  Liens arising out of conditional sale, title retention, consignment or similar  arrangements for the sale or purchase of goods entered into by the Issuer or any of its  Restricted Subsidiaries in the ordinary course of business;  (33)  Liens solely on any cash earnest money deposits made by the Issuer or any  of its Restricted Subsidiaries in connection with any letter of intent or purchase  agreement permitted by this Indenture;  (34)  ground leases in respect of real property on which facilities owned or leased  by the Issuer or any of its Subsidiaries are located;  (35)  Liens on insurance policies and the proceeds thereof securing the financing  of the premiums with respect thereto;  





 






  -33-  US-DOCS\122118934.6  (36)  any zoning or similar law or right reserved to or vested in any governmental  authority to control or regulate the use of any real property;  (37)  Liens on assets securing any Indebtedness owed to any Captive Insurance  Subsidiary by the Issuer or any Restricted Subsidiary;   (38)  Liens on deposits provided in respect of cash collateral to secure letters of  credit issued under Credit Facilities; and  (39) other Liens securing obligations which do not exceed, in aggregate principal  amount outstanding, the greater of $100.0 million and 30.0% of EBITDA, measured at  the time of incurrence.   For purposes of this definition, the term “Indebtedness” shall be deemed to  include interest on such Indebtedness.  “Person” means any individual, corporation, limited liability company,  partnership, joint venture, association, joint stock company, trust, unincorporated organization,  government or any agency or political subdivision thereof or any other entity.  “Preferred Stock” means any Equity Interest with preferential rights of payment  of dividends or upon liquidation, dissolution, or winding up.  “Private Placement Legend” means the legend set forth in Section 2.06(g)(i)  hereof to be placed on all Notes issued under this Indenture, except where otherwise permitted  by the provisions of this Indenture.  “QIB” means a “qualified institutional buyer” as defined in Rule 144A.  “Qualified Proceeds” means the fair market value of assets that are used or useful  in, or Capital Stock of any Person engaged in, a Similar Business.  “Qualified Receivables Facility” means any of one or more receivables, payables,  factoring or securitization financing or facilities as amended, supplemented, modified, extended,  renewed, restated, or refunded from time to time, the Obligations of which are non-recourse  (except for customary representations, warranties, covenants, repurchase obligations and  indemnities made in connection with such facilities, including, without limitation, those based on  a breach of obligations under the relevant purchase agreement or the agreement underlying any  Receivables Assets, incorrect or misleading representations and warranties, Receivables Assets  failing to meet any eligibility criteria, failure by an insurer of Receivables Assets to honor  claims, titled defects, illegality, false misleading or incomplete information, exclusion of cover  under any insurance in respect of any Receivables Assets, dilution, third party claims, or  Receivables Assets becoming subject to any asserted defense, off-set or counterclaim) to the  Issuer or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to  which the Issuer or any of its Restricted Subsidiaries sells, conveys or otherwise transfers or  grants a security interest in its accounts receivable or Receivables Assets or assets related thereto  to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary.  





 






  -34-  US-DOCS\122118934.6  “Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or each shall  not make a rating on the Notes publicly available, a nationally recognized statistical rating  agency or agencies, as the case may be, selected by the Issuer which shall be substituted for  Moody’s or S&P or each, as the case may be.  “Receivables Assets” means the accounts receivable, royalty, or other revenue  streams, and other rights to receive payment arising from a sale or lease of goods or services and  any assets related thereto (including, but not limited to, all collateral securing such receivable, all  contracts and all guarantees or other obligations in respect of such receivable, proceeds collected  on such receivable and other assets which are customarily transferred or in respect of which  security interest are customarily granted in connection with receivables financing, asset based  lending, asset backed lending or asset securitization transactions and any related hedging  obligations, in each case, whether now existing or arising in the future.  “Receivables Fees” means distributions or payments made directly or by means of  discounts, set-off or netting with respect to any participation interest issued or sold in connection  with, and other fees paid to a Person that is not a Receivables Subsidiary in connection with, any  Qualified Receivables Facility.  “Receivables Subsidiary” means any Subsidiary formed for the purpose of, and  that solely engages in, one or more Qualified Receivables Facilities and other activities  reasonably related thereto.  “Record Date” for the interest payable on any applicable Interest Payment Date  means the April 1 and October 1 (whether or not a Business Day) immediately preceding such  Interest Payment Date.  “Regulation S” means Regulation S promulgated under the Securities Act.  “Regulation S Global Note” means a Regulation S Temporary Global Note or  Regulation S Permanent Global Note, as applicable.   “Regulation S Permanent Global Note” means a permanent Global Note  substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private  Placement Legend and deposited with or on behalf of, and registered in the name of, the  Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of  the Regulation S Temporary Global Note upon expiration of the Restricted Period.  “Regulation S Temporary Global Note” means a temporary Global Note  substantially in the form of Exhibit A hereto bearing the Global Note Legend, the Private  Placement Legend and the Regulation S Temporary Global Note Legend and deposited with or  on behalf of, and registered in the name of, the Depositary or its nominee, issued in a  denomination equal to the outstanding principal amount of the Notes initially sold in reliance on  Rule 903.  “Regulation S Temporary Global Note Legend” means the legend set forth in  Section 2.06(g)(iii) hereof.  





 






  -35-  US-DOCS\122118934.6  “Related Business Assets” means assets (other than Cash Equivalents) used or  useful in a Similar Business; provided that any assets received by the Issuer or a Restricted  Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be  deemed to be Related Business Assets if they consist of securities of a Person, unless upon  receipt of the securities of such Person, such Person would become a Restricted Subsidiary.   “Responsible Officer” means, when used with respect to the Trustee, any officer  within the corporate trust department of the Trustee, including any vice president, assistant vice  president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee  who customarily performs functions similar to those performed by the Persons who at the time  shall be such officers, respectively, or to whom any corporate trust matter is referred because of  such Person’s knowledge of and familiarity with the particular subject and who shall have direct  responsibility for the administration of this Indenture.  “Restricted Definitive Note” means a Definitive Note bearing, or that is required  to bear, the Private Placement Legend.  “Restricted Global Note” means a Global Note bearing, or that is required to bear,  the Private Placement Legend.  “Restricted Investment” means an Investment other than a Permitted Investment.  “Restricted Period” means, in respect of any Note issued under Regulation S, the  40-day distribution compliance period as defined in Regulation S applicable to such Note.  “Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of  the Issuer (including any Foreign Subsidiary) that is not at such time an Unrestricted Subsidiary;  provided that, upon an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such  Subsidiary shall be included in the definition of “Restricted Subsidiary.”  “Rule 144” means Rule 144 promulgated under the Securities Act.  “Rule 144A” means Rule 144A promulgated under the Securities Act.  “Rule 903” means Rule 903 promulgated under the Securities Act.  “Rule 904” means Rule 904 promulgated under the Securities Act.  “S&P” means Standard & Poor’s, a division of S&P Global Inc., and any  successor to its rating agency business.  “Sale and Lease-Back Transaction” means any arrangement providing for the  renting or leasing by the Issuer or any of its Restricted Subsidiaries of any real or tangible  personal property, which property has been or is to be sold or transferred by the Issuer or such  Restricted Subsidiary to a third Person in contemplation of such renting or leasing.  “Screened Affiliate” means any Affiliate of a Holder (i) that makes investment  decisions independently from such Holder and any other Affiliate of such Holder that is not a  Screened Affiliate, (ii) that has in place customary information screens between it and such  





 






  -36-  US-DOCS\122118934.6  Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens  prohibit the sharing of information with respect to the Issuer, any Guarantor or any of their  Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other  Affiliate of such Holder that is acting in concert with such Holder in connection with its  investment in the Notes, and (iv) whose investment decisions are not influenced by the  investment decisions of such Holder or any other Affiliate of such Holder that is acting in  concert with such Holders in connection with its investment in the Notes.  “SEC” means the U.S. Securities and Exchange Commission.  “Secured Indebtedness” means any Indebtedness of the Issuer or any of its  Restricted Subsidiaries secured by a Lien.  “Securities Act” means the Securities Act of 1933, as amended, and the rules and  regulations of the SEC promulgated thereunder.  “Senior Credit Facility” means (i) the Credit Facilities under that certain  Amended and Restated Credit Agreement, dated as of October 19, 2018, by and among the  Issuer, the subsidiaries of the Issuer party thereto from time to time, the lenders party thereto  from time to time, and Bank of America, N.A., as Administrative Agent, Swingline Lender and  L/C Issuer, and the other Credit Documents (as defined therein), including, without limitation,  any guarantees, collateral documents, notes, instruments, joinders and other agreements executed  and delivered in connection therewith, as amended, amended and restated, supplemented or  otherwise modified by the Senior Credit Facility Amendment (as defined herein) dated on or  about the Issue Date, and from time to time by any further amendments, supplements,  modifications, extensions, renewals, restatements, refundings, or refinancings thereof, and (ii)  any indentures or credit facilities or commercial paper facilities with banks or other institutional  lenders or investors that replace, refund, or refinance any part of the loans, notes, other credit  facilities, or commitments thereunder, including any such replacement, refunding, or refinancing  facility or indenture that increases the amount borrowable thereunder or alters the maturity  thereof; provided that such increase in borrowings is permitted under Section 4.09 hereof.  “Senior Indebtedness” means:  (1)  all Indebtedness of the Issuer or any Guarantor outstanding under the Senior  Credit Facility, the Convertible Notes, and related guarantees or the Notes and related  Guarantees (including interest accruing on or after the filing of any petition in bankruptcy  or similar proceeding or for reorganization of the Issuer or any Guarantor (at the rate  provided for in the documentation with respect thereto, regardless of whether or not a  claim for post-filing interest is allowed in such proceedings)), and any and all other fees,  expense reimbursement obligations, indemnification amounts, penalties, and other  amounts (whether existing on the Issue Date or thereafter created or incurred) and all  obligations of the Issuer or any Guarantor to reimburse any bank or other Person in  respect of amounts paid under letters of credit, acceptances or other similar instruments;  (2)  all (x) Hedging Obligations (and guarantees thereof) owing to a Lender (as  defined in the Senior Credit Facility) or any Affiliate of such Lender (or any Person that  was a Lender or an Affiliate of such Lender at the time the applicable agreement giving  





 






  -37-  US-DOCS\122118934.6  rise to such Hedging Obligation was entered into) and (y) obligations in respect of Bank  Products; provided that such Hedging Obligations and obligations in respect of Bank  Products, as the case may be, are permitted to be incurred under the terms of this  Indenture;  (3)  any other Indebtedness of the Issuer or any Guarantor permitted to be  incurred under the terms of this Indenture, unless the instrument under which such  Indebtedness is incurred expressly provides that it is subordinated in right of payment to  the Notes or any related Guarantee; and  (4)  all Obligations with respect to the items listed in the preceding clauses (1), (2)  and (3);  provided that Senior Indebtedness shall not include:  (a)  any obligation of such Person to the Issuer or any of its Subsidiaries;  (b)  any liability for federal, state, local or other taxes owed or owing by  such Person;  (c)  any accounts payable or other liability to trade creditors arising in the  ordinary course of business;  (d)  any Indebtedness or other Obligation of such Person which is  subordinate or junior in any respect to any other Indebtedness or other Obligation  of such Person; or  (e)  that portion of any Indebtedness which at the time of incurrence is  incurred in violation of this Indenture.  “Short Derivative Instrument” means a Derivative Instrument (i) the value of  which generally decreases, and/or the payment or delivery obligations under which generally  increase, with positive changes to the Performance References and/or (ii) the value of which  generally increases, and/or the payment or delivery obligations under which generally decrease,  with negative changes to the Performance References.  “Significant Subsidiary” means any Restricted Subsidiary that would be a  “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated under  the Securities Act, as such regulation is in effect on the Issue Date.  “Similar Business” means (1) any business conducted or proposed to be  conducted by the Issuer or any of its Restricted Subsidiaries on the Issue Date and any  reasonable extension thereof or (2) any business or other activities that are reasonably similar,  related, complementary, incidental or ancillary to, or a reasonable extension, development or  expansion of, the businesses in which the Issuer and its Restricted Subsidiaries are engaged or  propose to be engaged on the Issue Date.  





 






  -38-  US-DOCS\122118934.6  “Subordinated Indebtedness” means:  (1)  any Indebtedness of the Issuer which is by its terms subordinated in right of  payment to the Notes, and  (2)  any Indebtedness of any Guarantor which is by its terms subordinated in right  of payment to the Guarantee of such entity.  “Subsidiary” means, with respect to any Person:  (1)  any corporation, association, or other business entity (other than a  partnership, joint venture, limited liability company or similar entity) of which more than  50.0% of the total voting power of shares of Capital Stock entitled (without regard to the  occurrence of any contingency) to vote in the election of directors, managers or trustees  thereof is at the time of determination owned or controlled, directly or indirectly, by such  Person or one or more of the other Subsidiaries of that Person or a combination thereof;  and  (2)  any partnership, joint venture, limited liability company or similar entity of  which  (x)  more than 50.0% of the capital accounts, distribution rights, total  equity and voting interests or general or limited partnership interests, as  applicable, are owned or controlled, directly or indirectly, by such Person or one  or more of the other Subsidiaries of that Person or a combination thereof whether  in the form of membership, general, special or limited partnership interest or  otherwise, and  (y)  such Person or any Restricted Subsidiary of such Person is a  controlling general partner or otherwise controls such entity.  “Subsidiary Guarantor” means each Restricted Subsidiary of the Issuer that  Guarantees the Notes.  “Transaction Expenses” means any fees or expenses incurred or paid by the Issuer  or any of its Restricted Subsidiaries in connection with the Transactions.  “Transactions” means the issuance of the Notes on the Issue Date, the amendment  of the Senior Credit Facility (the “Senior Credit Facility Amendment”) as described under  “Summary—Concurrent Amendment of Our Senior Credit Facility and Refinancing” in the  Offering Memorandum and the application of the use of proceeds from the offering of the Initial  Notes  as described under “Use of Proceeds” in the Offering Memorandum, including the  repayment of amounts outstanding under the term loan portion of Senior Credit Facility,  repayment of outstanding borrowings under the revolving portion of the Senior Credit Facility  and repayment of the Convertible Notes at maturity as described therein and the payment of fees  and expenses incurred in connection therewith, and other transactions in connection therewith or  incidental thereto.  





 






  -39-  US-DOCS\122118934.6  “Treasury Rate” means, as of any applicable Redemption Date, the yield to  maturity as of such Redemption Date of United States Treasury securities with a constant  maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15  (519) which has become publicly available at least two Business Days prior to such Redemption  Date (or, if such Statistical Release is no longer published, any publicly available source of  similar market data)) most nearly equal to the period from such Redemption Date to April 15,  2024; provided, however, that if the period from such Redemption Date to April 15, 2024 is less  than one year, the weekly average yield on actually traded United States Treasury securities  adjusted to a constant maturity of one year shall be used. In connection with the calculation of  the Applicable Premium for purposes of the deposit of funds for Legal Defeasance, Covenant  Defeasance or satisfaction and discharge of this Indenture, the date of notice of redemption shall  be substituted for the first and second occurrence of “Redemption Date” in this definition.  “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15  U.S.C. §§ 77aaa-77bbbb).  “Uniform Commercial Code” means the New York Uniform Commercial Code as  in effect from time to time.  “Unrestricted Definitive Note” means one or more Definitive Notes that do not  bear and are not required to bear the Private Placement Legend.  “Unrestricted Global Note” means a permanent Global Note, substantially in the  form of Exhibit A attached hereto, that bears the Global Note Legend and that has the “Schedule  of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on  behalf of, and registered in the name of, the Depositary, representing Notes that do not bear the  Private Placement Legend.  “Unrestricted Subsidiary” means:  (1)  any Subsidiary of the Issuer which at the time of determination is an  Unrestricted Subsidiary (as designated by the Issuer, as provided below); and  (2)  any Subsidiary of an Unrestricted Subsidiary.  The Issuer may designate any Subsidiary of the Issuer (including any existing  Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary  unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or  owns or holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than  solely any Subsidiary of the Subsidiary to be so designated); provided that  (1)  such designation complies with Section 4.07 hereof; and  (2)  each of:  (a)  the Subsidiary to be so designated; and  





 






  -40-  US-DOCS\122118934.6  (b)  its Subsidiaries has not at the time of designation, and does not  thereafter, create, incur, issue, assume, guarantee or otherwise become directly or  indirectly liable with respect to any Indebtedness pursuant to which the lender has  recourse to any of the assets of the Issuer or any Restricted Subsidiary.  The Issuer may designate any Unrestricted Subsidiary to be a Restricted  Subsidiary; provided that, immediately after giving effect to such designation, no Default shall  have occurred and be continuing and either:  (1)  the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the  Fixed Charge Coverage Test described in Section 4.09(a) hereof; or  (2)  the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries  would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries  immediately prior to such designation, in each case on a pro forma basis taking into  account such designation.  Any such designation by the Issuer shall be notified by the Issuer to the Trustee  by promptly filing with the Trustee a copy of the resolution of the board of directors of the Issuer  or any committee thereof giving effect to such designation and an Officer’s Certificate certifying  that such designation complied with the foregoing provisions.   “U.S. Government Obligations” means securities that are:  (1) direct obligations of the United States of America for the timely payment of  which its full faith and credit is pledged, or  (2) obligations of a Person controlled or supervised by and acting as an agency or  instrumentality of the United States of America the timely payment of which is  unconditionally guaranteed as a full faith and credit obligation by the United States of  America,  which, in each case, are not callable or redeemable at the option of the issuer thereof, and shall  also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities  Act) as custodian with respect to any such U.S. Government Obligations or a specific payment of  principal of or interest on any such U.S. Government Obligations held by such custodian for the  account of the holder of such depository receipt; provided that (except as required by law) such  custodian is not authorized to make any deduction from the amount payable to the holder of such  depository receipt from any amount received by the custodian in respect of the U.S. Government  Obligations or the specific payment of principal of or interest on the U.S. Government  Obligations evidenced by such depository receipt.   “U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities  Act.  “Voting Stock” of any Person as of any date means the Capital Stock of such  Person that is at the time entitled to vote in the election of the board of directors of such Person.  





 






  -41-  US-DOCS\122118934.6  “Warrant Transactions” means one or more call options, warrants or rights to  purchase (or substantively equivalent derivative transaction) referencing the Issuer’s common  stock, which for the avoidance of doubt may be settled by a delivery of shares of the Issuer’s  common stock or cash, written by the Issuer or a Restricted Subsidiary substantially  contemporaneously with the purchase by the Issuer or such Restricted Subsidiary of Convertible  Bond Hedge Transactions and having an initial strike or exercise price (howsoever defined)  greater than the strike or exercise price (howsoever defined) of such Convertible Bond Hedge  Transactions.  “Weighted Average Life to Maturity” means, when applied to any Indebtedness,  Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by  dividing:  (1)  the sum of the products of the number of years from the date of determination  to the date of each successive scheduled principal payment of such Indebtedness or  redemption or similar payment with respect to such Disqualified Stock or Preferred Stock  multiplied by the amount of such payment; by  (2)  the sum of all such payments.  “Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person,  100.0% of the outstanding Equity Interests of which (other than directors’ qualifying shares and  shares issued to foreign nationals as required by applicable law) shall at the time be owned by  such Person and/or by one or more Wholly Owned Subsidiaries of such Person.  SECTION 1.02. Other Definitions.        Term  Defined  in Section  “Acceptable Commitment” ................................................................................ 4.10  “Affiliate Transaction” ....................................................................................... 4.11  “Applicable AML Law” ..................................................................................... 12.15  “Applicable Premium Deficit” ........................................................................... 8.04  “Asset Sale Offer” .............................................................................................. 4.10  “Authentication Order” ...................................................................................... 2.02  “Change of Control Offer” ................................................................................. 4.14  “Change of Control Payment” ............................................................................ 4.14  “Change of Control Payment Date” ................................................................... 4.14  “Covenant Defeasance” ...................................................................................... 8.03  “Covenant Suspension Event” ........................................................................... 4.16  “Deemed Date” .................................................................................................. 4.09  “Directing Holder”  ............................................................................................ 6.02  “DTC” ................................................................................................................ 2.03  “Event of Default” .............................................................................................. 6.01  “Excess Proceeds” .............................................................................................. 4.10  “Excess Proceeds Threshold”  ............................................................................ 4.10  “Excluded Information”  .................................................................................... 4.03  





 






  -42-  US-DOCS\122118934.6        Term  Defined  in Section  “Fixed Charge Coverage Test” .......................................................................... 4.09  “Foreign Disposition” ........................................................................................ 4.10  “Increased Amount” 4.12  “incur” ................................................................................................................ 4.09  “incurrence” ....................................................................................................... 4.09  “Legal Defeasance” ............................................................................................ 8.02  “maximum fixed repurchase price” .................................................................... 1.03  “Noteholder Direction”  ..................................................................................... 6.02  “Note Register” .................................................................................................. 2.03  “Offer Amount” .................................................................................................. 3.09  “Offer Period” .................................................................................................... 3.09  “Pari Passu Indebtedness” .................................................................................. 4.10  “Paying Agent” .................................................................................................. 2.03  “Position Representation”  ................................................................................. 6.02  “Purchase Date” ................................................................................................. 3.09  “Redemption Date” ............................................................................................ 3.07  “Refinancing Indebtedness” ............................................................................... 4.09  “Refunding Capital Stock” ................................................................................. 4.07  “Registrar” .......................................................................................................... 2.03  “Restricted Payments” ........................................................................................ 4.07  “Reversion Date” ................................................................................................ 4.16  “Second Commitment” ...................................................................................... 4.10  “Successor Company” ........................................................................................ 5.01  “Successor Person” ............................................................................................ 5.01  “Suspended Covenants” ..................................................................................... 4.16  “Suspension Date” .............................................................................................. 4.16  “Suspension Period” ........................................................................................... 4.16  “Transaction Agreement Date” .......................................................................... 1.05  “Treasury Capital Stock” ................................................................................... 4.07  “Trustee” ............................................................................................................ Recitals  “Verification Covenant”  .................................................................................... 6.02  SECTION 1.03. Rules of Construction.  Unless the context otherwise requires:  (a)  a term has the meaning assigned to it;  (b)  an accounting term not otherwise defined has the meaning assigned to it in  accordance with GAAP;  (c)  “or” is not exclusive;  (d)  “including” means including without limitation;  (e)  words in the singular include the plural, and in the plural include the singular;  





 






  -43-  US-DOCS\122118934.6  (f)  “shall” and “will” shall be interpreted to express a command;  (g)  provisions apply to successive events and transactions;  (h)  references to sections of, or rules under, the Securities Act shall be deemed to  include substitute, replacement or successor sections or rules adopted by the SEC from time to  time;  (i)  unless the context otherwise requires, any reference to an “Article,” “Section”  or “clause” refers to an Article, Section or clause, as the case may be, of this Indenture;  (j)  the words “herein,” “hereof” and “hereunder” and other words of similar  import refer to this Indenture as a whole and not any particular Article, Section, clause or other  subdivision;  (k)  the principal amount of any non-interest bearing or other discount security at  any date shall be the principal amount thereof that would be shown on a balance sheet of the  Issuer dated such date prepared in accordance with GAAP;  (l)  words used herein implying any gender shall apply to both genders;  (m)  in the computation of periods of time from a specified date to a later  specified date, the word “from” means “from and including”; the words “to” and “until” each  mean “to but excluding” and the word “through” means “to and including”;   (n)  (i) the principal amount of any Preferred Stock at any time shall be (A) the  maximum liquidation value of such Preferred Stock at such time or (B) the maximum mandatory  redemption; and (ii) the “maximum fixed repurchase price” of any Disqualified Stock or  Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance  with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or  Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be  required to be determined pursuant to this Indenture, and if such price is based upon, or  measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair  market value shall be determined in good faith by the Issuer; and  (o)  the phrase “in writing” as used herein shall be deemed to include PDFs, e- mails and other electronic means of transmission, unless otherwise indicated.  SECTION 1.04. Acts of Holders.  (a)  Any request, demand, authorization, direction, notice, consent, waiver or  other action provided by this Indenture to be given or taken by Holders may be embodied in and  evidenced by one or more instruments of substantially similar tenor signed by such Holders in  person or by an agent duly appointed in writing.  Except as herein otherwise expressly provided,  such action shall become effective when such instrument or instruments are delivered to the  Trustee and, where it is hereby expressly required, to the Issuer.  Proof of execution of any such  instrument or of a writing appointing any such agent, or the holding by any Person of a Note,  shall be sufficient for any purpose of this Indenture and (subject to Section 7.01 hereof)  





 






  -44-  US-DOCS\122118934.6  conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this  Section 1.04.  (b)  The fact and date of the execution by any Person of any such instrument or  writing may be proved by the affidavit of a witness of such execution or by the certificate of any  notary public or other officer authorized by law to take acknowledgments of deeds, certifying  that the individual signing such instrument or writing acknowledged to him the execution  thereof.  Where such execution is by or on behalf of any legal entity other than an individual,  such certificate or affidavit shall also constitute proof of the authority of the Person executing the  same.  The fact and date of the execution of any such instrument or writing, or the authority of  the Person executing the same, may also be proved in any other manner that the Trustee deems  sufficient.  (c)  The ownership of Notes shall be proved by the Note Register.  (d)  Any request, demand, authorization, direction, notice, consent, waiver or  other action by the Holder of any Note shall bind every future Holder of the same Note and the  Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in  lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in  reliance thereon, whether or not notation of such action is made upon such Note.  (e)  The Issuer may set a record date for purposes of determining the identity of  Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or  take any other act, or to vote or consent to any action by vote or consent authorized or permitted  to be given or taken by Holders.  Unless otherwise specified, if not set by the Issuer prior to the  first solicitation of a Holder made by any Person in respect of any such action, or in the case of  any such vote, prior to such vote, any such record date shall be the later of 10 days prior to the  first solicitation of such consent or the date of the most recent list of Holders furnished to the  Trustee prior to such solicitation.   (f)  Without limiting the foregoing, a Holder entitled to take any action hereunder  with regard to any particular Note may do so with regard to all or any part of the principal  amount of such Note or by one or more duly appointed agents, each of which may do so pursuant  to such appointment with regard to all or any part of such principal amount.  Any notice given or  action taken by a Holder or its agents with regard to different parts of such principal amount  pursuant to this Section 1.04(f) shall have the same effect as if given or taken by separate  Holders of each such different part.  (g)  Without limiting the generality of the foregoing, a Holder, including DTC,  may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand,  authorization, direction, notice, consent, waiver or other action provided in this Indenture to be  made, given or taken by Holders, and DTC may provide its proxy to the beneficial owners of  interests in any such Global Note through such depositary’s standing instructions and customary  practices.  (h)  The Issuer may fix a record date for the purpose of determining the Persons  who are beneficial owners of interests in any Global Note held by DTC entitled under the  





 






  -45-  US-DOCS\122118934.6  procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in  writing, any request, demand, authorization, direction, notice, consent, waiver or other action  provided in this Indenture to be made, given or taken by Holders.  If such a record date is fixed,  the Holders on such record date or their duly appointed proxy or proxies, and only such Persons,  shall be entitled to make, give or take such request, demand, authorization, direction, notice,  consent, waiver or other action, whether or not such Holders remain Holders after such record  date.  No such request, demand, authorization, direction, notice, consent, waiver or other action  shall be valid or effective if made, given or taken more than 90 days after such record date.  SECTION 1.05. Measuring Compliance.  (a)  With respect to any (x) Investment or acquisition, in each case, for which the  Issuer or any Subsidiary of the Issuer may not terminate its obligations (or may not do so without  incurring significant expense) due to a lack of financing for such Investment or acquisition  (whether by merger, consolidation or other business combination or the acquisition of Capital  Stock or otherwise), as applicable, and (y) repayment, repurchase or refinancing of Indebtedness  with respect to which an irrevocable notice of repayment (or similar irrevocable notice), which  may be conditional, has been delivered, in each case, for purposes of determining:  (i)  whether any Indebtedness (including Acquired Indebtedness) that is being  incurred in connection with such Investment, acquisition or repayment, repurchase or  refinancing of Indebtedness is permitted to be incurred in compliance with Section 4.09  hereof;  (ii)  whether any Lien being incurred in connection with such Investment,  acquisition or repayment, repurchase or refinancing of Indebtedness or to secure any such  Indebtedness is permitted to be incurred in accordance with Section 4.12 hereof or the  definition of “Permitted Liens”;  (iii)  whether any other transaction undertaken or proposed to be undertaken in  connection with such Investment, acquisition or repayment, repurchase or refinancing of  Indebtedness complies with the covenants or agreements contained in this Indenture or  the Notes; and  (iv)  any calculation of the ratios, including Fixed Charge Coverage Ratio,  Consolidated Total Debt Ratio, Consolidated Secured Debt Ratio, Consolidated Net  Income or EBITDA and, whether a Default or Event of Default exists in connection with  the foregoing,  at the option of the Issuer, the date the definitive agreement for such Investment, acquisition or  repayment, repurchase or refinancing of Indebtedness is entered into or irrevocable notice, which  may be conditional, of such repayment, repurchase or refinancing of Indebtedness is given to the  holders of such Indebtedness (each, a “Transaction Agreement Date”) may be used as the  applicable date of determination, as the case may be, in each case with such pro forma  adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth  in the definition of “EBITDA.”  





 






  -46-  US-DOCS\122118934.6  (b)  For the avoidance of doubt, if the Issuer elects to use the Transaction  Agreement Date as the applicable date of determination in accordance with the foregoing, (1)  any fluctuation or change in the Fixed Charge Coverage Ratio, Consolidated Total Debt Ratio,  Consolidated Secured Debt Ratio, Consolidated Net Income or EBITDA of the Issuer from the  Transaction Agreement Date to the date of consummation of such Investment, acquisition or  repayment, repurchase or refinancing of Indebtedness, will not be taken into account for  purposes of determining whether (x) any Indebtedness or Lien that is being incurred in  connection with such Investment, acquisition or repayment, repurchase or refinancing of  Indebtedness is permitted to be incurred or (y) any other transaction undertaken in connection  with such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness  complies with the covenants or agreements contained in this Indenture or the Notes, and (2) until  such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness is  consummated or such definitive agreement is terminated, such Investment, acquisition or  repayment, repurchase or refinancing of Indebtedness and all transactions proposed to be  undertaken in connection therewith (including the incurrence of Indebtedness and Liens) will be  given pro forma effect when determining compliance of other transactions (including the  incurrence of Indebtedness and Liens unrelated to such Investment, acquisition or repayment,  repurchase or refinancing of Indebtedness) that are consummated after the Transaction  Agreement Date and on or prior to the date of such consummation or termination.  (c)  The compliance with any requirement relating to the absence of a Default or  Event of Default may be determined as of the Transaction Agreement Date and not as of any  later date as would otherwise be required under this Indenture.  (d)  For purposes of covenant compliance, the amount of any Investment shall be  the amount actually invested, without adjustment for subsequent increases or decreases in the  value of such Investment but giving effect to any returns or distributions of capital or repayment  of principal actually received in cash by such Person with respect thereto.  (e)  In addition, notwithstanding anything to the contrary in this Indenture, in the  case of any Indebtedness or obligations incurred to refinance Indebtedness or obligations initially  incurred or secured in reliance on Section 4.09(b) or Section 4.12 measured by reference to a  percentage of EBITDA at the time of incurrence, if such refinancing would cause the percentage  of EBITDA restriction to be exceeded if calculated based on the percentage of EBITDA on the  date of such refinancing, such percentage of EBITDA restriction shall not be deemed to be  exceeded so long as the principal amount of such refinancing Indebtedness or obligation does not  exceed the principal amount of such Indebtedness or obligation being refinanced, plus accrued  and unpaid interest, dividends, premiums (including tender premiums), defeasance costs,  underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees  or similar fees) in connection with such refinancing.  (f)  Notwithstanding anything to the contrary herein, so long as an action was  taken (or not taken) in reliance upon a basket or ratio that was calculated or determined in good  faith by a responsible financial or accounting officer of the Issuer based upon financial  information available to such officer at such time and such action (or inaction) was permitted  hereunder at the time of such calculation or determination, any subsequent restatement,  modification or adjustments made to such financial information (including any restatement,  





 






  -47-  US-DOCS\122118934.6  modification or adjustment that would have caused such basket or ratio to be exceeded as a result  of such action or inaction) shall not result in any Default or Event of Default.  (g)  Notwithstanding anything to the contrary herein, in the event an item of  Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is incurred or  issued, any Lien is incurred or other transaction is undertaken in reliance on a ratio basket based  on the Fixed Charge Coverage Ratio, Consolidated Secured Debt Ratio or Consolidated Total  Debt Ratio, such ratio(s) shall be calculated with respect to such incurrence, issuance or other  transaction without giving effect to amounts being utilized under any other basket (other than a  ratio basket based on the Fixed Charge Coverage Ratio, Consolidated Secured Debt Ratio or  Consolidated Total Debt Ratio) on the same date. Each item of Indebtedness, Disqualified Stock  or Preferred Stock that is incurred or issued, each Lien incurred and each other transaction  undertaken will be deemed to have been incurred, issued or taken first, to the extent available,  pursuant to the relevant Fixed Charge Coverage Ratio, Consolidated Secured Debt Ratio or  Consolidated Total Debt Ratio test.  ARTICLE II  THE NOTES  SECTION 2.01. Form and Dating; Terms.  (a)  General.  The Notes and the Trustee’s certificate of authentication shall be  substantially in the form of Exhibit A hereto.  The Notes may have notations, legends or  endorsements required by law, stock exchange rules or usage.  Each Note shall be dated the date  of its authentication.  The Notes shall be issued in minimum denominations of $2,000 and any  integral multiple of $1,000 in excess thereof.  (b)  Global Notes.  Notes issued in global form shall be substantially in the form  of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges  of Interests in the Global Note” attached thereto).  Notes issued in definitive form shall be  substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and  without the “Schedule of Exchanges of Interests in the Global Note” attached thereto).  Each  Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule  of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall  represent up to the aggregate principal amount of Notes from time to time endorsed thereon and  that the aggregate principal amount of outstanding Notes represented thereby may from time to  time be reduced or increased, as applicable, to reflect exchanges and redemptions.  Any  endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate  principal amount of outstanding Notes represented thereby shall be made by the Trustee or the  Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder  thereof as required by Section 2.06 hereof. None of the Trustee or any Agent shall have any  responsibility or obligation to any beneficial owner of an interest in a Global Note, any agent  member or other member of, or a participant in, DTC or other person with respect to the  accuracy of the records of DTC or any nominee or participant or member thereof, with respect to  any ownership interest in the notes or with respect to the delivery to any agent member or other  participant, member, beneficial owner or other person (other than DTC) of any notice or the  payment of any amount or delivery of any notes (or other security or property) under or with  





 






  -48-  US-DOCS\122118934.6  respect to such notes. All notices and communications to be given to the holders and all  payments to be made to holders in respect of the notes shall be given or made only to the  registered holders (which shall be DTC or its nominee in the case of a global note). The rights of  beneficial owners in any global note shall be exercised only through DTC, subject to its  applicable rules and procedures. The Trustee and Agents may rely and shall be fully protected in  relying upon information furnished by DTC with respect to its agent members and other  members, participants and any beneficial owners.   (c)  Temporary Global Notes.  Notes offered and sold in reliance on Regulation S  shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be  deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as  Custodian for the Depositary and registered in the name of the Depositary or the nominee of the  Depositary for the accounts of the designated agents holding on behalf of Euroclear and  Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter  provided.  Following the termination of the Restricted Period, beneficial interests in the  Regulation S Temporary Global Note may be exchanged for beneficial interests in the  Regulation S Permanent Global Note upon certification in a form reasonably acceptable to the  Issuer that those interests are owned by (i) non-U.S. Persons or (ii) U.S. Persons who acquired  those interests pursuant to another exemption from, or in transactions not subject to, the  registration requirements of the Securities Act.  The aggregate principal amount of the  Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from  time to time be increased or decreased by adjustments made on the records of the Trustee and the  Depositary or its nominee, as the case may be, in connection with transfers of interest as  hereinafter provided.  (d)  Terms.  The terms and provisions contained in the Notes shall constitute, and  are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors from time to  time party hereto and the Trustee, by their execution and delivery of this Indenture, expressly  agree to such terms and provisions and to be bound thereby.  However, to the extent any  provision of any Note conflicts with the express provisions of this Indenture, the provisions of  this Indenture shall govern and be controlling.  (e)  Euroclear and Clearstream Applicable Procedures.  The provisions of the  “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of  Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer  Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the  Regulation S Temporary Global Note and the Regulation S Permanent Global Note that are held  by Participants through Euroclear or Clearstream.   The aggregate principal amount of Notes that may be authenticated and delivered  under this Indenture is unlimited.  Subject to compliance with Section 4.09 hereof, the Issuer  may issue Additional Notes from time to time ranking pari passu with the Initial Notes without  notice to or consent of the Holders, and such Additional Notes shall be consolidated with and  form a single class with the Initial Notes and shall have the same terms as to status, redemption  or otherwise as the Initial Notes, except that interest may accrue on the Additional Notes from  





 






  -49-  US-DOCS\122118934.6  their date of issuance (or such other date specified by the Issuer); provided that if any Additional  Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such  Additional Notes will have a separate CUSIP or ISIN, as applicable, from the Initial Notes.  Any  Additional Notes may be issued with the benefit of an indenture supplemental to this Indenture.  SECTION 2.02. Execution and Authentication.  At least one Officer of the Issuer  shall execute the Notes on behalf of the Issuer by manual, facsimile or electronic (including  “PDF”) signature.  If an Officer of the Issuer whose signature is on a Note no longer holds that office  at the time the Trustee authenticates the Note, the Note shall nevertheless be valid.  A Note shall not be entitled to any benefit under this Indenture or be valid or  obligatory for any purpose until authenticated substantially in the form of Exhibit A attached  hereto, as the case may be, by the manual signature of an authorized signatory of the Trustee.   The signature shall be conclusive evidence that the Note has been duly authenticated and  delivered under this Indenture.  On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an  “Authentication Order”), authenticate and deliver the Initial Notes.  In addition, at any time, from  time to time, the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver  any Additional Notes.  The Trustee may appoint an authenticating agent acceptable to the Issuer to  authenticate Notes.  An authenticating agent may authenticate Notes whenever the Trustee may  do so.  Each reference in this Indenture to authentication by the Trustee includes authentication  by such agent.  An authenticating agent has the same rights as an Agent to deal with Holders or  an Affiliate of the Issuer.  SECTION 2.03. Registrar and Paying Agent.  The Issuer shall maintain (i) an  office or agency where Notes may be presented for registration of transfer or for exchange (the  “Registrar”) and (ii) an office or agency where Notes may be presented for payment (the “Paying  Agent”).  The Registrar shall keep a register of the Notes (the “Note Register”) and of their  transfer and exchange.  The Issuer may appoint one or more co-registrars, one or more additional  paying agents and one or more transfer agents.  The term “Registrar” includes any co-registrar  and the term “Paying Agent” includes any additional paying agents. For avoidance of doubt,  there shall be only one Note Register.  The Issuer shall maintain a Registrar and Paying Agent in the Borough of  Manhattan, the City of New York, the State of New York.  The Issuer initially appoints the Trustee as Paying Agent.  The Issuer may change  any Paying Agent or Registrar without prior notice to any Holder.  The Issuer shall notify the  Trustee in writing of the name and address of any Agent not a party to this Indenture.  If the  Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall,  





 






  -50-  US-DOCS\122118934.6  to the extent that it is capable, act as such.  The Issuer or any of its Domestic Subsidiaries may  act as Paying Agent or Registrar.  The Issuer initially appoints The Depository Trust Company (“DTC”) to act as  Depositary with respect to the Global Notes representing the Notes. The Issuer initially appoints  the Trustee to act as the Registrar for the Notes and to act as Custodian with respect to the Global  Notes.   If and to the extent that the Notes are listed on an exchange and the rules of such  exchange so require, the Issuer shall satisfy any requirement of such exchange as to paying  agents, registrars and transfer agents and will comply with any notice requirements required  under such exchange in connection with any change of paying agent, registrar or transfer agent.  SECTION 2.04. Paying Agent to Hold Money in Trust.  The Issuer shall require  each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in  trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the  payment of principal, premium, if any, or interest on the Notes, and will notify the Trustee of any  default by the Issuer in making any such payment. While any such default continues, the Trustee  may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time  may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the  Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability  for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a  separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any  bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying  Agent for the Notes.  SECTION 2.05. Holder Lists.  The Trustee shall preserve in as current a form as  is reasonably practicable the most recent list available to it of the names and addresses of all  Holders.  If the Trustee is not the Registrar, the Issuer shall furnish, or cause the Registrar to  furnish, to the Trustee at least two Business Days before each Interest Payment Date and at such  other times as the Trustee may request in writing, a list in such form and as of such date as the  Trustee may reasonably require of the names and addresses of the Holders.  SECTION 2.06. Transfer and Exchange.  (a)  Transfer and Exchange of Global Notes.  Except as otherwise set forth in this  Section 2.06, a Global Note may be transferred, in whole and not in part, only to the Depositary,  another nominee of the Depositary or to a successor thereto or a nominee of such successor  thereto.  A beneficial interest in a Global Note may not be exchanged for a Definitive Note  unless (A) the Depositary (x) notifies the Issuer that it is unwilling or unable to continue as  Depositary for such Global Note or (y) has ceased to be a clearing agency registered under the  Exchange Act, and, in either case, a successor depositary is not appointed within 120 days, (B)  there shall have occurred and be continuing an Event of Default with respect to the Notes, or (C)  the Issuer, in its sole discretion, determines that all Global Notes should be exchanged for  Definitive Notes.  Upon the occurrence of any of the events described in clauses (A) through (C)  above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein  will be registered in the names, and issued in any approved denominations, requested by or on  





 






  -51-  US-DOCS\122118934.6  behalf of the Depositary, in accordance with its customary procedures.  Global Notes also may  be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.   Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any  portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be  authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive  Notes issued subsequent to any of the events described in clauses (A) or (B) above and pursuant  to Section 2.06(c) hereof.  A Global Note may not be exchanged for another Note other than as  provided in this Section 2.06(a); provided, however, beneficial interests in a Global Note may be  transferred and exchanged as provided in Section 2.06(b) or (c) hereof.  (b)  Transfer and Exchange of Beneficial Interests in the Global Notes.  The  transfer and exchange of beneficial interests in the Global Notes shall be effected through the  Depositary in accordance with the provisions of this Indenture and the Applicable Procedures.   Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer  comparable to those set forth herein to the extent required by the Securities Act.  Transfers of  beneficial interests in the Global Notes also shall require compliance with either subparagraph (i)  or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as  applicable:  (i)  Transfer of Beneficial Interests in the Same Global Note.  Beneficial interests  in any Restricted Global Note may be transferred to Persons who take delivery thereof in  the form of a beneficial interest in the same Restricted Global Note in accordance with  the transfer restrictions set forth in the Private Placement Legend; provided that, prior to  the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S  Temporary Global Note may not be made to a U.S. Person or for the account or benefit of  a U.S. Person other than pursuant to Rule 144A.  Beneficial interests in any Unrestricted  Global Note may be transferred to Persons who take delivery thereof in the form of a  beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall  be required to be delivered to the Registrar to effect the transfers described in this  Section 2.06(b)(i).  (ii)  All Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In  connection with all transfers and exchanges of beneficial interests that are not subject to  Section 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver to the  Registrar either (A) (1) a written order from a Participant or an Indirect Participant given  to the Depositary in accordance with the Applicable Procedures directing the Depositary  to credit or cause to be credited a beneficial interest in another Global Note in an amount  equal to the beneficial interest to be transferred or exchanged and (2) instructions given in  accordance with the Applicable Procedures containing information regarding the  Participant account to be credited with such increase or (B) (1) a written order from a  Participant or an Indirect Participant given to the Depositary in accordance with the  Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in  an amount equal to the beneficial interest to be transferred or exchanged and (2)  instructions given by the Depositary to the Registrar containing information regarding the  Person in whose name such Definitive Note shall be registered to effect the transfer or  exchange referred to in (1) above; provided that in no event shall Definitive Notes be  issued upon the transfer or exchange of beneficial interests in a Regulation S Temporary  





 






  -52-  US-DOCS\122118934.6  Global Note prior to (x) the expiration of the Restricted Period and (y) the receipt by the  Registrar of any certifications required pursuant to this Indenture.  Upon satisfaction of  all of the requirements for transfer or exchange of beneficial interests in Global Notes  contained in this Indenture and the Notes, the Trustee shall adjust the principal amount of  the relevant Global Note(s) pursuant to Section 2.06(h) hereof.  (iii)  Transfer of Beneficial Interests to Another Restricted Global Note.  A  beneficial interest in any Restricted Global Note may be transferred to a Person who  takes delivery thereof in the form of a beneficial interest in another Restricted Global  Note if the transfer complies with the requirements of Section 2.06(b)(ii) hereof and the  Registrar receives the following:   (A) if the transferee will take delivery in the form of a beneficial interest  in a 144A Global Note, then the transferor must deliver a certificate in the form of  Exhibit B hereto, including the certifications in item (1) thereof; or  (B) if the transferee will take delivery in the form of a beneficial interest  in a Regulation S Global Note, then the transferor must deliver a certificate in the  form of Exhibit B hereto, including the certifications in item (2) thereof.  (iv)  Transfer and Exchange of Beneficial Interests in a Restricted Global Note for  Beneficial Interests in an Unrestricted Global Note.  A beneficial interest in any  Restricted Global Note may be exchanged by any holder thereof for a beneficial interest  in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in  the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer  complies with the requirements of Section 2.06(b)(ii) hereof and:  (A) such Notes are sold or exchanged pursuant to an effective registration  statement under the Securities Act; or  (B) the Registrar receives the following:  (1)  if the holder of such beneficial interest in a Restricted Global  Note proposes to exchange such beneficial interest for a beneficial interest  in an Unrestricted Global Note, a certificate from such Holder  substantially in the form of Exhibit C hereto, including the certifications in  item (1)(a) thereof; or  (2)  if the holder of such beneficial interest in a Restricted Global  Note proposes to transfer such beneficial interest to a Person who shall  take delivery thereof in the form of a beneficial interest in an Unrestricted  Global Note, a certificate from such holder in the form of Exhibit B  hereto, including the certifications in item (4) thereof;  and, in each such case set forth in this subparagraph (B), if the Issuer so requests  or if the Applicable Procedures so require, an Opinion of Counsel in form  reasonably acceptable to the Issuer to the effect that such exchange or transfer is  in compliance with the Securities Act and that the restrictions on transfer  





 






  -53-  US-DOCS\122118934.6  contained herein and in the Private Placement Legend are no longer required in  order to maintain compliance with the Securities Act.  If any such transfer is effected pursuant to subparagraph (A) or (B) above at a  time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon  receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall  authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the  aggregate principal amount of beneficial interests transferred pursuant to subparagraph (A) or  (B) above.  Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or  transferred to Persons who take delivery thereof in the form of, a beneficial interest in a  Restricted Global Note.  (c)  Transfer or Exchange of Beneficial Interests for Definitive Notes.  (i)  Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.   If any holder of a beneficial interest in a Restricted Global Note proposes to exchange  such beneficial interest for a Restricted Definitive Note or to transfer such beneficial  interest to a Person who takes delivery thereof in the form of a Restricted Definitive  Note, then, upon the occurrence of any of the events described in clauses (A) through (C)  of Section 2.06(a) hereof and receipt by the Registrar of the following documentation:  (A) if the holder of such beneficial interest in a Restricted Global Note  proposes to exchange such beneficial interest for a Restricted Definitive Note, a  certificate from such holder substantially in the form of Exhibit C hereto,  including the certifications in item (2)(a) thereof;  (B) if such beneficial interest is being transferred to a QIB in accordance  with Rule 144A, a certificate substantially in the form of Exhibit B hereto,  including the certifications in item (1) thereof;  (C) if such beneficial interest is being transferred to a Non-U.S. Person in  an offshore transaction in accordance with Rule 903 or Rule 904, a certificate  substantially in the form of Exhibit B hereto, including the certifications in item  (2) thereof;  (D) if such beneficial interest is being transferred pursuant to an  exemption from the registration requirements of the Securities Act in accordance  with Rule 144, a certificate substantially in the form of Exhibit B hereto,  including the certifications in item (3)(a) thereof;  (E) if such beneficial interest is being transferred to the Issuer or any of its  Restricted Subsidiaries, a certificate substantially in the form of Exhibit B hereto,  including the certifications in item (3)(b) thereof; or  





 






  -54-  US-DOCS\122118934.6  (F) if such beneficial interest is being transferred pursuant to an effective  registration statement under the Securities Act, a certificate substantially in the  form of Exhibit B hereto, including the certifications in item (3)(c) thereof,  the Trustee shall cause the aggregate principal amount of the applicable Global Note to  be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute  and, upon receipt of an Authentication Order, the Trustee shall authenticate and mail to  the Person designated in the instructions a Definitive Note in the applicable principal  amount.  Any Definitive Note issued in exchange for a beneficial interest in a Restricted  Global Note pursuant to this Section 2.06(c) shall be registered in such name or names  and in such authorized denomination or denominations as the holder of such beneficial  interest shall instruct the Registrar through instructions from the Depositary and the  Participant or Indirect Participant.  The Trustee shall mail such Definitive Notes to the  Persons in whose names such Notes are so registered.  Any Definitive Note issued in  exchange for a beneficial interest in a Restricted Global Note pursuant to this Section  2.06(c)(i) (except for transfers pursuant to clause (F) above) shall bear the Private  Placement Legend and shall be subject to all restrictions on transfer contained therein.  (ii)  Beneficial Interests in Regulation S Temporary Global Note to Definitive  Notes.   Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the  Regulation S Temporary Global Note may not be exchanged for a Definitive Note or  transferred to a Person who takes delivery thereof in the form of a Definitive Note prior  to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any  certifications required pursuant to Rule 903(b)(3)(ii)(B), except in the case of a transfer  pursuant to an exemption from the registration requirements of the Securities Act other  than Rule 903 or Rule 904.  (iii)  Beneficial Interests in Restricted Global Notes to Unrestricted Definitive  Notes.  A holder of a beneficial interest in a Restricted Global Note may exchange such  beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial  interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive  Note only upon the occurrence of any of the events described in clauses (A) through (C)  of Section 2.06(a) hereof and if the Registrar receives the following:  (A) if the holder of such beneficial interest in a Restricted Global Note  proposes to exchange such beneficial interest for an Unrestricted Definitive Note,  a certificate from such holder substantially in the form of Exhibit C hereto,  including the certifications in item (1)(b) thereof; or  (B) if the holder of such beneficial interest in a Restricted Global Note  proposes to transfer such beneficial interest to a Person who shall take delivery  thereof in the form of an Unrestricted Definitive Note, a certificate from such  holder substantially in the form of Exhibit B hereto, including the certifications in  item (4) thereof;  and, in each such case set forth in this subclause (iii), if the Issuer so requests or if the  Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable  





 






  -55-  US-DOCS\122118934.6  to the Issuer to the effect that such exchange or transfer is in compliance with the  Securities Act and that the restrictions on transfer contained herein and in the Private  Placement Legend are no longer required in order to maintain compliance with the  Securities Act.  (iv)  Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive  Notes.  If any holder of a beneficial interest in an Unrestricted Global Note proposes to  exchange such beneficial interest for a Definitive Note or to transfer such beneficial  interest to a Person who takes delivery thereof in the form of a Definitive Note, then,  upon the occurrence of any of the events described in clauses (A) through (C) of  Section 2.06(a) hereof and satisfaction of the conditions set forth in Section 2.06(b)(ii)  hereof, the Trustee shall cause the aggregate principal amount of the applicable Global  Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall  execute and, upon receipt of an Authentication Order, the Trustee shall authenticate and  mail to the Person designated in the instructions a Definitive Note in the applicable  principal amount.  Any Definitive Note issued in exchange for a beneficial interest  pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such  authorized denomination or denominations as the holder of such beneficial interest shall  instruct the Registrar through instructions from or through the Depositary and the  Participant or Indirect Participant.  The Trustee shall mail such Definitive Notes to the  Persons in whose names such Notes are so registered.  Any Definitive Note issued in  exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the  Private Placement Legend.  (d)  Transfer and Exchange of Definitive Notes for Beneficial Interests.  (i)  Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes.   If any Holder of a Restricted Definitive Note proposes to exchange such Note for a  beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive  Note to a Person who takes delivery thereof in the form of a beneficial interest in a  Restricted Global Note, then, upon receipt by the Registrar of the following  documentation:  (A) if the Holder of such Restricted Definitive Note proposes to exchange  such Note for a beneficial interest in a Restricted Global Note, a certificate from  such Holder substantially in the form of Exhibit C hereto, including the  certifications in item (2)(b) thereof;  (B) if such Restricted Definitive Note is being transferred to a QIB in  accordance with Rule 144A, a certificate substantially in the form of Exhibit B  hereto, including the certifications in item (1) thereof;  (C) if such Restricted Definitive Note is being transferred to a Non-U.S.  Person in an offshore transaction in accordance with Rule 903 or Rule 904, a  certificate substantially in the form of Exhibit B hereto, including the  certifications in item (2) thereof;  





 






  -56-  US-DOCS\122118934.6  (D) if such Restricted Definitive Note is being transferred pursuant to an  exemption from the registration requirements of the Securities Act in accordance  with Rule 144, a certificate substantially in the form of Exhibit B hereto,  including the certifications in item (3)(a) thereof;  (E) if such Restricted Definitive Note is being transferred to the Issuer or  any of its Restricted Subsidiaries, a certificate substantially in the form of  Exhibit B hereto, including the certifications in item (3)(b) thereof; or  (F) if such Restricted Definitive Note is being transferred pursuant to an  effective registration statement under the Securities Act, a certificate substantially  in the form of Exhibit B hereto, including the certifications in item (3)(c) thereof,  the Trustee shall cancel the Restricted Definitive Note and increase or cause to be  increased the aggregate principal amount of, in the case of clause (A) above, the  applicable Restricted Global Note, in the case of clause (B) above, the applicable 144A  Global Note, and in the case of clause (C) above, the applicable Regulation S Global  Note.  (ii)  Restricted Definitive Notes to Beneficial Interests in Unrestricted Global  Notes.  A Holder of a Restricted Definitive Note may exchange such Note for a beneficial  interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a  Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted  Global Note only if the Registrar receives the following:  (A) if the Holder of such Definitive Notes proposes to exchange such  Notes for a beneficial interest in the Unrestricted Global Note, a certificate from  such Holder substantially in the form of Exhibit C hereto, including the  certifications in item (1)(c) thereof; or  (B) if the Holder of such Definitive Notes proposes to transfer such Notes  to a Person who shall take delivery thereof in the form of a beneficial interest in  the Unrestricted Global Note, a certificate from such Holder substantially in the  form of Exhibit B hereto, including the certifications in item (4) thereof;  and, in each such case set forth in this subclause (ii), if the Issuer so requests or if the  Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable  to the Issuer to the effect that such exchange or transfer is in compliance with the  Securities Act and that the restrictions on transfer contained herein and in the Private  Placement Legend are no longer required in order to maintain compliance with the  Securities Act.  Upon satisfaction of the conditions of any of the subparagraphs in this  Section 2.06(d)(ii), the Trustee shall cancel the Restricted Definitive Note and increase or  cause to be increased the aggregate principal amount of the Unrestricted Global Note.  (iii)  Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global  Notes.  A Holder of an Unrestricted Definitive Note may exchange such Note for a  





 






  -57-  US-DOCS\122118934.6  beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a  Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted  Global Note at any time.  Upon receipt of a request for such an exchange or transfer, the  Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to  be increased the aggregate principal amount of one of the Unrestricted Global Notes.  If any such exchange or transfer from a Definitive Note to a beneficial interest is effected  pursuant to subparagraph (ii) or (iii) above at a time when an Unrestricted Global Note has not  yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance  with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in  an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.  (e)  Transfer and Exchange of Definitive Notes for Definitive Notes.  Upon  request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this  Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to  such registration of transfer or exchange, the requesting Holder shall present or surrender to the  Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer  or exchange in form satisfactory to the Registrar duly executed by such Holder or by its attorney,  duly authorized in writing.  In the event that the requesting Holder does not transfer the entire  principal amount of Notes represented by any such Definitive Note, the Registrar shall cancel or  cause to be canceled such Definitive Note and the Issuer (who will have been informed of such  cancelation) shall execute and, upon receipt of an Authentication Order, the Trustee shall  authenticate and deliver to the requesting Holder and any transferee Definitive Notes in the  appropriate principal amounts to reflect such transfer.  In addition, the requesting Holder shall  provide any additional certifications, documents and information, as applicable, required  pursuant to the following provisions of this Section 2.06(e):  (i)  Restricted Definitive Notes to Restricted Definitive Notes.  Any Restricted  Definitive Note may be transferred to and registered in the name of Persons who take  delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the  following:  (A) if the transfer will be made to a QIB in accordance with Rule 144A,  then the transferor must deliver a certificate substantially in the form of Exhibit B  hereto, including the certifications in item (1) thereof;  (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the  transferor must deliver a certificate in the form of Exhibit B hereto, including the  certifications in item (2) thereof; or  (C) if the transfer will be made pursuant to any other exemption from the  registration requirements of the Securities Act, then the transferor must deliver a  certificate in the form of Exhibit B hereto, including the certifications required by  item (3) thereof, if applicable.  (ii)  Restricted Definitive Notes to Unrestricted Definitive Notes.  Any Restricted  Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive  





 






  -58-  US-DOCS\122118934.6  Note or transferred to a Person or Persons who take delivery thereof in the form of an  Unrestricted Definitive Note if the Registrar receives the following:  (A) if the Holder of such Restricted Definitive Notes proposes to exchange  such Notes for an Unrestricted Definitive Note, a certificate from such Holder  substantially in the form of Exhibit C hereto, including the certifications in item  (1)(d) thereof; or  (B) if the Holder of such Restricted Definitive Notes proposes to transfer  such Notes to a Person who shall take delivery thereof in the form of an  Unrestricted Definitive Note, a certificate from such Holder substantially in the  form of Exhibit B hereto, including the certifications in item (4) thereof;  and, in each such case set forth in this subclause (ii), if the Issuer so requests, an Opinion  of Counsel in form reasonably acceptable to the Issuer to the effect that such exchange or  transfer is in compliance with the Securities Act and that the restrictions on transfer  contained herein and in the Private Placement Legend are no longer required in order to  maintain compliance with the Securities Act.  (iii)  Unrestricted Definitive Notes to Unrestricted Definitive Notes.  A Holder of  Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery  thereof in the form of an Unrestricted Definitive Note.  Upon receipt of a request to  register such a transfer, the Registrar shall register the Unrestricted Definitive Notes  pursuant to the instructions from the Holder thereof.  (f)  [Reserved]  (g)  Legends.  The following legends shall appear on the face of all Global Notes  and Definitive Notes issued under this Indenture unless specifically stated otherwise in the  applicable provisions of this Indenture:  (i)  Private Placement Legend.  (A) Except as permitted by subparagraph (B) below, each Global Note and  each Definitive Note (and all Notes issued in exchange therefor or substitution  thereof) shall bear the legend in substantially the following form:  “THIS NOTE AND THE GUARANTEES THEREOF HAVE NOT BEEN  REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED  (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE  OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE  ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN  THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE  HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED  INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE  SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING  THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH  REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT  





 






  -59-  US-DOCS\122118934.6  WILL NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD  APPLICABLE TO SALES OF THE NOTES UNDER RULE 144 UNDER THE  SECURITIES ACT (OR ANY SUCCESSOR PROVISION), OFFER, RESELL,  PLEDGE, OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE  ISSUER OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE  NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A  QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE  144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES  IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH  REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE  EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER  THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN  EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES  ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION  FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,  AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM  THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE  EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE  TRANSACTION,” “UNITED STATES,” AND “U.S. PERSON” HAVE THE  MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE  SECURITIES ACT.    BY ITS ACQUISITION OF THIS NOTE OR ANY INTEREST HEREIN, THE  HOLDER WILL BE DEEMED TO HAVE REPRESENTED AND  WARRANTED THAT EITHER (1) (A) SUCH HOLDER IS NOT, AND IS NOT  ACTING ON BEHALF OF, A PLAN AND (B) NO PORTION OF THE  ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS NOTE  OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY  EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S.  EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS  AMENDED (“ERISA”), OR OTHER ARRANGEMENT OR ACCOUNT OR  PLAN THAT IS SUBJECT TO ERISA OR SECTION 4975 OF THE U.S.  INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR  PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S.  OR OTHER LAWS, RULES OR REGULATIONS THAT ARE SIMILAR TO  SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY,  “SIMILAR LAWS”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE  CONSIDERED TO INCLUDE “PLAN ASSETS” (WITHIN THE MEANING  OF 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF  ERISA) OF A PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE  ACQUISITION AND HOLDING OF THIS NOTE OR ANY INTEREST  HEREIN WILL NOT RESULT IN A NON-EXEMPT PROHIBITED  TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF  THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE  SIMILAR LAWS.”  Except as permitted by subparagraph (B) below, each Global Note and  





 






  -60-  US-DOCS\122118934.6  Definitive Note issued in a transaction exempt from registration pursuant to  Regulation S shall also bear the legend in substantially the following form:  “THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A  TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER  THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES  ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR  TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON  EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE  REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL  APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE  THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE  SECURITIES ACT.”  (B) Notwithstanding the foregoing, any Global Note or Definitive Note  issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii) or  (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or  substitution thereof) shall not bear the Private Placement Legend.  (ii)  Global Note Legend.  Each Global Note shall bear a legend in substantially  the following form (with appropriate changes in the last sentence if DTC is not the  Depositary):  “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS  DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS  NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL  OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY  PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE  TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE  REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE,  (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT  NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE  INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO  THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION  2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE  TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE  PRIOR WRITTEN CONSENT OF THE ISSUER.  UNLESS AND  UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN  DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED  EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF  THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO  THE DEPOSITARY OR ANOTHER NOMINEE OF THE  DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH  NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF  SUCH SUCCESSOR DEPOSITARY.  UNLESS THIS CERTIFICATE IS  PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE  DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION   





 






  -61-  US-DOCS\122118934.6  (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS  AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR  PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN  THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC  (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER  ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED  REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR  OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO  ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED  OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”  (iii)  Regulation S Temporary Global Note Legend. The Regulation S Temporary  Global Note shall bear a legend in substantially the following form:  “THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY  GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES  GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS  SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”  (h)  Cancellation and/or Adjustment of Global Notes.  At such time as all  beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a  particular Global Note has been redeemed, repurchased or cancelled in whole and not in part,  each such Global Note shall be returned to or retained and cancelled by the Trustee in  accordance with Section 2.11 hereof.  At any time prior to such cancellation, if any beneficial  interest in a Global Note is exchanged for or transferred to a Person who will take delivery  thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the  principal amount of Notes represented by such Global Note shall be reduced accordingly and an  endorsement shall be made on such Global Note by the Trustee or by the Depositary at the  direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged  for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in  another Global Note, such other Global Note shall be increased accordingly and an endorsement  shall be made on such Global Note by the Trustee or by the Depositary at the direction of the  Trustee to reflect such increase.  (i)  General Provisions Relating to Transfers and Exchanges.  (i)  To permit registrations of transfers and exchanges, the Issuer shall execute  and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an  Authentication Order in accordance with Section 2.02.  (ii)  No service charge shall be made to a holder of a beneficial interest in a Global  Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but  the Issuer may require payment of a sum sufficient to cover any transfer tax or similar  governmental charge payable in connection therewith (other than any such transfer taxes  or similar governmental charge payable upon exchange or transfer pursuant to  Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.04 hereof).  





 






  -62-  US-DOCS\122118934.6  (iii)  Neither the Registrar nor the Issuer shall be required to register the transfer of  or exchange any Note selected for redemption or tendered (and not withdrawn) for  repurchase in whole or in part, except the unredeemed portion of any Note being  redeemed or tendered in part; provided that new Notes will only be issued in minimum  denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  (iv)  All Global Notes and Definitive Notes issued upon any registration of transfer  or exchange of Global Notes or Definitive Notes shall be the valid obligations of the  Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture,  as the Global Notes or Definitive Notes surrendered upon such registration of transfer or  exchange.  (v)  Neither the Registrar nor the Issuer shall be required:  (A) to issue, to register the transfer of or to exchange any Note during a  period beginning at the opening of business 15 days before the delivery of a  notice of redemption of the Notes to be redeemed under Section 3.03 hereof and  ending at the close of business on the day of such delivery;  (B) to register the transfer of or to exchange any Note so selected for  redemption in whole or in part, except the unredeemed portion of any Note being  redeemed in part;  (C) to register the transfer or exchange of a Note between a Record Date  and the next succeeding Interest Payment Date; or  (D) to register the transfer or exchange of any Notes tendered (and not  withdrawn) for repurchase in connection with a Change of Control Offer or an  Asset Sale Offer.  (vi)  Prior to due presentment for the registration of a transfer of any Note, the  Trustee, any Agent and the Issuer and any agent of the foregoing may deem and treat the  Person in whose name any Note is registered as the absolute owner of such Note for the  purpose of receiving payment of principal of (and premium, if any) and interest on such  Note and for all other purposes, and none of the Trustee, any Agent or the Issuer or any  agent of the foregoing shall be affected by notice to the contrary.  (vii)  Upon surrender for registration of transfer of any Note at the office or agency  designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the Trustee shall  authenticate and mail, in the name of the designated transferee or transferees, one or more  replacement Notes of any authorized denomination or denominations of a like aggregate  principal amount.  (viii)  At the option of the Holder, subject to Section 2.06(a) hereof, Notes may be  exchanged for other Notes of any authorized denomination or denominations of a like  aggregate principal amount upon surrender of the Notes to be exchanged at such office or  agency.  Whenever any Global Notes or Definitive Notes are so surrendered for  exchange, the Issuer shall execute, and, upon receipt of an Authentication Order, the  





 






  -63-  US-DOCS\122118934.6  Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes  which the Holder making the exchange is entitled to in accordance with the provisions of  Section 2.02 hereof.  (ix)  All certifications, certificates and Opinions of Counsel required to be  submitted pursuant to this Section 2.06 to effect a registration of transfer or exchange  may be submitted by facsimile or electronic delivery.  (x)  Neither the Trustee nor any Agent shall have any obligation or duty to  monitor, determine or inquire as to compliance with any restrictions on transfer imposed  under this Indenture or under applicable law with respect to any transfer of any interest in  any note (including any transfers between or among Participants or Indirect Participants  in any global note) other than to require delivery of such certificates and other  documentation or evidence as are expressly required by, and to do so if and when  expressly required by, the terms of this Indenture, and to examine the same to determine  substantial compliance as to form with the express requirements hereof.  SECTION 2.07. Replacement Notes.  If any mutilated Note is surrendered to the  Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the  ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon  receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s  requirements are met.  If required by the Trustee or the Issuer, an indemnity bond must be  supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect  the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them  may suffer if a Note is replaced.  The Issuer and the Trustee may charge the Holder for their  expenses in replacing a Note.  Notwithstanding the foregoing provisions of this Section 2.07, in case any  mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the  Issuer in its discretion may, instead of issuing a new Note, pay such Note.  Every replacement Note is a contractual obligation of the Issuer and shall be  entitled to all of the benefits of this Indenture equally and proportionately with all other Notes  duly issued hereunder.  The provisions of this Section 2.07 shall be exclusive and shall preclude  (to the extent lawful) all other rights and remedies with respect to the replacement or payment of  mutilated, destroyed, lost or stolen Notes.  SECTION 2.08. Outstanding Notes.  The Notes outstanding at any time are all the  Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for  cancellation, those reductions in the interest in a Global Note effected by the Trustee in  accordance with the provisions hereof and those described in this Section 2.08 as not  outstanding.  Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding  because the Issuer, a Guarantor or an Affiliate of the Issuer or a Guarantor holds the Note.  If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding  unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected  purchaser (as defined in Section 8-303 of the Uniform Commercial Code).  





 






  -64-  US-DOCS\122118934.6  If the principal amount of any Note is considered paid under Section 4.01 hereof,  it ceases to be outstanding and interest on it ceases to accrue.  If the Paying Agent (other than the Issuer, a Guarantor or an Affiliate of the Issuer  or a Guarantor) holds, on a Redemption Date or maturity date, money sufficient to pay Notes (or  portions thereof) payable on that date, then on and after that date such Notes (or portions thereof)  shall be deemed to be no longer outstanding (including for accounting purposes) and shall cease  to accrue interest.  SECTION 2.09. Treasury Notes.  In determining whether the Holders of the  required principal amount of Notes have concurred in any direction, waiver or consent, Notes  owned by the Issuer, a Guarantor or by any Affiliate of the Issuer or a Guarantor, shall be  considered as though not outstanding, except that for the purposes of determining whether the  Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a  Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.  Notes  so owned which have been pledged in good faith shall not be disregarded if the pledgee  establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction,  waiver or consent with respect to the Notes and that the pledgee is not the Issuer, a Guarantor or  any Affiliate of the Issuer or a Guarantor.  SECTION 2.10. Temporary Notes.  Until certificates representing Notes are ready  for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order,  shall authenticate temporary Notes.  Temporary Notes shall be substantially in the form of  certificated Notes but may have variations that the Issuer considers appropriate for temporary  Notes.  Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate  definitive Notes in exchange for temporary Notes.  Holders and beneficial holders, as the case may be, of temporary Notes shall be  entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes  under this Indenture.  SECTION 2.11. Cancellation.  The Issuer at any time may deliver Notes to the  Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes  surrendered to them for registration of transfer, exchange or payment.  The Trustee or, at the  direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes  surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall  dispose of cancelled Notes in accordance with its customary procedures.  Certification of the  disposition of all cancelled Notes shall be delivered to the Issuer.  The Issuer may not issue new  Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.  SECTION 2.12. Defaulted Interest.  If the Issuer defaults in a payment of interest  on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful,  interest payable on the defaulted interest to the Persons who are Holders on a subsequent special  record date, in each case at the rate provided in the Notes and in Section 4.01 hereof.  The Issuer  shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each  Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the  Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of  





 






  -65-  US-DOCS\122118934.6  such defaulted interest or shall make arrangements satisfactory to the Trustee for such deposit  prior to the date of the proposed payment, such money when deposited to be held in trust for the  benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12.  The  Trustee shall fix or cause to be fixed any such special record date and payment date; provided  that no such special record date shall be less than 10 days prior to the related payment date for  such defaulted interest.  The Trustee shall promptly notify the Issuer of any such special record  date.  At least 15 days before any such special record date, the Issuer (or, upon the written  request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall send  electronically, mail or cause to be mailed, first-class postage prepaid, or otherwise deliver in  accordance with the Applicable Procedures, to each Holder, with a copy to the Trustee, a notice  at his or her address as it appears in the Note Register that states the special record date, the  related payment date and the amount of such interest to be paid.  Subject to the foregoing provisions of this Section 2.12 and for greater certainty,  each Note delivered under this Indenture upon registration of transfer of or in exchange for or in  lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which  were carried by such other Note.  SECTION 2.13. CUSIP Numbers and ISINs.  The Issuer in issuing the Notes may  use CUSIP numbers and ISINs (in each case, if then generally in use) and, if so, the Trustee shall  use CUSIP numbers and ISINs in notices of redemption or exchange as a convenience to  Holders; provided that any such notice may state that no representation is made as to the  correctness of such numbers either as printed on the Notes or as contained in any notice of  redemption or exchange and that reliance may be placed only on the other identification numbers  printed on the Notes, and any such redemption shall not be affected by any defect in or omission  of such numbers.  The Issuer will as promptly as practicable notify the Trustee in writing of any  change in the CUSIP numbers and ISINs.    ARTICLE III  REDEMPTION  SECTION 3.01. Notices to Trustee.  If the Issuer elects to redeem Notes pursuant  to Section 3.07 hereof, it shall furnish to the Trustee, at least five Business Days (unless the  Trustee shall agree to a shorter notice period) before notice of redemption is required to be  delivered to Holders pursuant to Section 3.03 hereof, an Officer’s Certificate setting forth (i) the  paragraph or subparagraph of such Note and/or Section of this Indenture pursuant to which the  redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of the Notes to be  redeemed and (iv) the redemption price.  SECTION 3.02. Selection of Notes to Be Redeemed.  If less than all of the Notes  are to be redeemed at any time, the Trustee shall select the Notes to be redeemed in compliance  with the requirements of the principal national securities exchange, if any, on which the Notes  are listed, or if the Notes are not so listed or such exchange prescribes no method of selection, on  a pro rata basis, by lot or by such other method as the Trustee shall deem fair and appropriate and  otherwise in such manner as complies with the Applicable Procedures. Neither the Trustee nor  the applicable Registrar shall be liable for any selections made by it in accordance with this  paragraph (including the procedures of the relevant depositaries).  





 






  -66-  US-DOCS\122118934.6  The Trustee shall promptly notify the Issuer in writing of the Notes selected for  redemption and, in the case of any Note selected for partial redemption, the principal amount  thereof to be redeemed.  Notes and portions of Notes selected shall be in amounts of $2,000 and  any integral multiple of $1,000 in excess thereof; no Notes of less than $2,000 can be redeemed  in part, except that if all of the Notes of a Holder are to be redeemed, the entire outstanding  amount of Notes held by such Holder, even if not a principal amount of at least $2,000, shall be  redeemed.  Except as provided in the preceding sentence, provisions of this Indenture that apply  to Notes called for redemption also apply to portions of Notes called for redemption.  SECTION 3.03. Notice of Redemption.  Subject to Sections 3.07(e) and 3.09  hereof, the Issuer shall send electronically, mail or cause to be mailed by first-class mail, postage  prepaid, notices of redemption at least 10 days but not more than 60 days before the Redemption  Date to each Holder of Notes at such Holder’s registered address or otherwise in accordance with  the Applicable Procedures, except that redemption notices may be delivered more than 60 days  prior to a Redemption Date if the notice is issued in connection with a conditional redemption or  Article VIII or Article XI hereof.  For Notes held on behalf of DTC, notices may be given by  delivery of the relevant notices to DTC for communication to entitled account holders in  substitution for the aforementioned delivery.  The notice shall identify the Notes to be redeemed and shall state:  (a)  the Redemption Date;  (b)  the redemption price;  (c)  if any Note is to be redeemed in part only, the portion of the principal amount  of that Note that is to be redeemed and that, after the Redemption Date upon surrender of such  Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original  Note representing the same indebtedness to the extent not redeemed will be issued in the name of  the Holder of the Notes upon cancellation of the original Note;  (d)  the name and address of the Paying Agent;  (e)  that Notes called for redemption must be surrendered to the Paying Agent to  collect the redemption price;  (f)  that, unless the Issuer defaults in making such redemption payment, interest  on Notes called for redemption ceases to accrue on and after the Redemption Date;  (g)  the paragraph or subparagraph of the Notes and/or Section of this Indenture  pursuant to which the Notes called for redemption are being redeemed;  (h)  the CUSIP number and ISIN, if any, printed on the Notes being redeemed and  that no representation is made as to the correctness or accuracy of any such CUSIP number and  ISIN that is listed in such notice or printed on the Notes; and  (i)  any condition to such redemption.  





 






  -67-  US-DOCS\122118934.6  At the Issuer’s request, the Trustee shall give the notice of redemption in the  Issuer’s name and at its expense; provided that the Issuer shall have delivered to the Trustee, at  least five Business Days before notice of redemption is required to be delivered electronically,  mailed or caused to be mailed to Holders pursuant to this Section 3.03 (unless a shorter notice  shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such  notice and setting forth the information to be stated in such notice as provided in the preceding  paragraph and setting forth the form of such notice.  SECTION 3.04. Effect of Notice of Redemption.  Once notice of redemption is  given in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably  due and payable on the Redemption Date at the redemption price (except as provided for in  Section 3.07(e) hereof).  The notice, if given in a manner herein provided, shall be conclusively  presumed to have been given, whether or not the Holder receives such notice.  In any case,  failure to give such notice as provided herein or any defect in the notice to the Holder of any  Note designated for redemption in whole or in part shall not affect the validity of the proceedings  for the redemption of any other Note.  Subject to Sections 3.05 and 3.07(e) hereof, on and after  the Redemption Date, interest shall cease to accrue on Notes or portions of Notes called for  redemption.  SECTION 3.05. Deposit of Redemption Price.    (a)  Prior to 11:00 a.m. (New York City time) on the Redemption Date, the Issuer  shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption  price of, and accrued and unpaid interest on, all Notes to be redeemed on that Redemption Date.   The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with  the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the  redemption price of, and accrued and unpaid interest on, all Notes to be redeemed.  (b)  If the Issuer complies with the provisions of the preceding paragraph (a), on  and after the Redemption Date, interest shall cease to accrue on the Notes or the portions of  Notes called for redemption.  If a Note is redeemed on or after a Record Date but on or prior to  the related Interest Payment Date, then any accrued and unpaid interest to the Redemption Date  shall be paid to the Person in whose name such Note was registered at the close of business on  such Record Date.  If any Note called for redemption is not paid upon surrender for redemption  because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid  on the unpaid principal, from the Redemption Date until such principal is paid, and to the extent  lawful on any interest accrued to the Redemption Date not paid on such unpaid principal, in each  case, at the rate provided in the Notes and in Section 4.01 hereof.  SECTION 3.06. Notes Redeemed in Part.  Upon surrender of a Note that is  redeemed in part, the Issuer shall issue and, upon receipt of an Authentication Order, the Trustee  shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal  amount to the unredeemed portion of the Note surrendered; provided that each new Note will be  in a minimum principal amount of $2,000 and any integral multiple of $1,000 in excess thereof.   It is understood that, notwithstanding anything in this Indenture to the contrary, only an  Authentication Order and not an Opinion of Counsel or Officer’s Certificate of the Issuer is  required for the Trustee to authenticate such new Note.  





 






  -68-  US-DOCS\122118934.6  SECTION 3.07. Optional Redemption.  (a)  At any time prior to April 15, 2024, the Issuer may on one or more occasions  redeem the Notes, in whole or in part, upon notice in accordance with Section 3.03 hereof, at a  redemption price equal to 100% of the principal amount of the Notes redeemed plus the  Applicable Premium as of, plus accrued and unpaid interest, if any, to, but excluding, the date of  redemption (each date on which a redemption occurs, a “Redemption Date”), subject to the right  of Holders of record on the relevant Record Date to receive interest due on the relevant Interest  Payment Date.  (b)  On and after April 15, 2024, the Issuer may on one or more occasions redeem  the Notes, in whole or in part, upon notice in accordance with Section 3.03 hereof, at the  applicable redemption price (expressed as percentages of principal amount of the Notes to be  redeemed) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the  applicable Redemption Date, subject to the right of Holders of record on the relevant Record  Date to receive interest due on the relevant Interest Payment Date, if redeemed during the  twelve-month period beginning on April 15 of each of the years indicated below:  Year Percentage     2024 ..............................................................................  102.250%  2025 ..............................................................................  101.125%  2026 and thereafter .......................................................  100.000%    (c)  In addition, prior to April 15, 2024, the Issuer may, at its option, and on one  or more occasions, redeem up to 40% of the aggregate principal amount of Notes issued under  this Indenture (including any Additional Notes issued under this Indenture after the Issue Date)  at a redemption price equal to 104.50% of the aggregate principal amount of the Notes  redeemed, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption  Date, subject to the right of Holders of record on the relevant Record Date to receive interest due  on the relevant Interest Payment Date, with funds in an aggregate amount equal to the net cash  proceeds of one or more Equity Offerings of the Issuer; provided that (1) at least 50% of (A) the  aggregate principal amount of Notes originally issued under this Indenture on the Issue Date plus  (B) the aggregate principal amount of any Additional Notes issued under this Indenture after the  Issue Date remains outstanding immediately after the occurrence of each such redemption; and  (2) each such redemption occurs within 180 days of the date of closing of each such Equity  Offering.  (d)  Notwithstanding the foregoing, in connection with any Change of Control  Offer or Asset Sale Offer, if Holders of not less than 90% in aggregate principal amount of the  outstanding Notes validly tender and do not withdraw such Notes in such Change of Control  Offer or Asset Sale Offer and the Issuer, or any third party making such Change of Control Offer  or Asset Sale Offer in lieu of the Issuer, purchases all of the Notes validly tendered and not  withdrawn by such Holders, all of the Holders will be deemed to have consented to such Change  of Control Offer or Asset Sale Offer and accordingly, the Issuer or such third party will have the  right upon not less than 10 nor more than 60 days’ prior notice (provided that such notice is not  





 






  -69-  US-DOCS\122118934.6  given more than 30 days following such purchase date) to redeem all Notes that remain  outstanding following such purchase at a price equal to the price offered to each other Holder in  such Change of Control Offer or Asset Sale Offer plus, to the extent not included in the Change  of Control Offer or Asset Sale Offer payment, accrued and unpaid interest, if any, thereon, to,  but excluding, the applicable Redemption Date subject to the rights of Holders of record on the  relevant record date to receive interest due on the relevant Interest Payment Date.  (e)  Any redemption pursuant to this Section 3.07 shall be made pursuant to the  provisions of Sections 3.01 through 3.06 hereof.  Notice of any redemption or purchase, whether  in connection with an Equity Offering, other transaction or otherwise, may be given prior to the  completion thereof, and any such notice may, at the Issuer’s discretion, be subject to one or more  conditions precedent.  If a redemption or purchase is subject to satisfaction of one or more  conditions precedent, such notice shall describe each such condition and, if applicable, shall state  that, in the Issuer’s discretion, the Redemption Date or purchase date may be delayed until such  time (including more than 60 days after the date the notice was sent) as any or all such conditions  shall be satisfied (or waived by the Issuer in its sole discretion) or such redemption or purchase  may not occur and such notice may be rescinded in the event that any or all such conditions shall  not have been satisfied by the Redemption Date or purchase date, or by the Redemption Date or  purchase date as so delayed.  In addition, the Issuer may provide in such notice that payment of  the redemption price or purchase price and performance of the Issuers’ obligations with respect  to such redemption or purchase may be performed by another Person.    SECTION 3.08. Mandatory Redemption.  The Issuer shall not be required to  make any mandatory redemption or sinking fund payments with respect to the Notes.   SECTION 3.09. Offers to Repurchase by Application of Excess Proceeds.  (a)  In the event that, pursuant to Section 4.10 hereof, the Issuer shall be required  to commence an Asset Sale Offer, it shall follow the procedures specified below.  (b)  The Asset Sale Offer shall remain open for a period of 20 Business Days  following its commencement and no longer, except to the extent that a longer period is required  by applicable law (the “Offer Period”).  No later than five Business Days after the termination of  the Offer Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer  Amount”) to the purchase of Notes and, if required, Pari Passu Indebtedness (on a pro rata basis,  if applicable, with adjustments as necessary so that no Note or Pari Passu Indebtedness will be  repurchased in part in an unauthorized denomination), or, if less than the Offer Amount has been  tendered, all Notes and Pari Passu Indebtedness tendered in response to the Asset Sale Offer.   Payment for any Notes so purchased shall be made in the same manner as interest payments are  made.    (c)  If the Purchase Date is on or after a Record Date and on or before the related  Interest Payment Date, then any accrued and unpaid interest to, but excluding, the Purchase Date  shall be paid to the Person in whose name a Note is registered at the close of business on such  Record Date.  





 






  -70-  US-DOCS\122118934.6  (d)  Upon the commencement of an Asset Sale Offer, the Issuer shall send  electronically or by first-class mail, postage prepaid, a notice to each of the Holders, with a copy  to the Trustee. The notice shall contain all instructions and materials necessary to enable such  Holders to tender Notes pursuant to the Asset Sale Offer.  The Asset Sale Offer shall be made to  all Holders and holders of Pari Passu Indebtedness.  The notice, which shall govern the terms of  the Asset Sale Offer, shall state:  (i)  that the Asset Sale Offer is being made pursuant to this Section 3.09 and  Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;  (ii)  the Offer Amount, the purchase price and the Purchase Date;  (iii)  that any Note not tendered or accepted for payment shall continue to accrue  interest;  (iv)  that, unless the Issuer defaults in making such payment, any Note accepted for  payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase  Date;  (v)  that any Holder electing to have less than all of the aggregate principal  amount of its Notes purchased pursuant to an Asset Sale Offer may elect to have Notes  purchased in minimum denominations of $2,000 and any integral multiple of $1,000 in  excess thereof;  (vi)  that Holders electing to have a Note purchased pursuant to any Asset Sale  Offer shall be required to surrender the Note, with the form entitled “Option of Holder to  Elect Purchase” attached to the Note completed, or transfer such Note by book-entry  transfer, to the Issuer, a depositary, if appointed by the Issuer, or a Paying Agent at the  address specified in the notice at least two Business Days before the Purchase Date;  (vii)  that Holders shall be entitled to withdraw their election if the Issuer, the  Depositary or the Paying Agent, as the case may be, receives, not later than the close of  business on the fourth Business Day prior to the expiration date of the Offer Period, a  facsimile transmission or letter setting forth the name of the Holder, the principal amount  of the Note the Holder delivered for purchase and a statement that such Holder is  withdrawing his election to have such Note purchased;  (viii)  that, if the aggregate principal amount of Notes and Pari Passu Indebtedness  surrendered by the holders thereof exceeds the Offer Amount, the Issuer shall purchase  such Notes and such Pari Passu Indebtedness on a pro rata basis based on the accreted  value or principal amount of the Notes or such Pari Passu Indebtedness tendered (with  such adjustments as may be deemed appropriate by the Issuer so that only Notes in  denominations of $2,000 and any integral multiple of $1,000 in excess thereof will be  purchased); and  (ix)  that Holders whose Notes were purchased only in part shall be issued new  Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or  





 






  -71-  US-DOCS\122118934.6  transferred by book-entry transfer); provided that the unpurchased portion of any Note  must be equal to at least $2,000 and any integral multiple of $1,000 in excess thereof.  (e)  On or before the Purchase Date, the Issuer shall, to the extent lawful,  (1) accept for payment, on a pro rata basis as described in clause (d)(viii) of this Section 3.09, the  Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or  if less than the Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be  delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating  the aggregate principal amount of Notes or portions thereof so tendered.  (f)  The Issuer, the Depositary or the Paying Agent, as the case may be, shall  promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the  Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer  shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall  authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such  Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no  Opinion of Counsel or Officer’s Certificate of the Issuer is required for the Trustee to  authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased  portion of the Note surrendered; provided that new Notes will only be issued in minimum  denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  Any Note not so  accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof.  The Issuer  shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the  Purchase Date.  (g)  Prior to 11:00 a.m. (New York City time) on the Purchase Date, the Issuer  shall deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase  price of and accrued and unpaid interest on all Notes to be purchased on that Purchase Date.  The  Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the  Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the purchase  price of, and accrued and unpaid interest on, all Notes to be redeemed.  Other than as specifically provided in this Section 3.09 or Section 4.10 hereof,  any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of  Sections 3.01 through 3.06 hereof, and references therein to “redeem,” “redemption” and similar  words shall be deemed to refer to “purchase,” “repurchase” and similar words, as applicable.  ARTICLE IV  COVENANTS  SECTION 4.01. Payment of Notes.  The Issuer shall pay or cause to be paid the  principal of, premium, if any, and interest on the Notes on the dates and in the manner provided  in the Notes.  Principal, premium, if any, and interest shall be considered paid on the date due if  the Paying Agent, if other than the Issuer, a Guarantor or an Affiliate of the Issuer or a  Guarantor, holds as of 11:00 a.m. (New York City time) on the due date money deposited by the  Issuer in immediately available funds and designated for and sufficient to pay all principal,  premium, if any, and interest then due.    





 






  -72-  US-DOCS\122118934.6  The Issuer shall pay interest (including post-petition interest in any proceeding  under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest  rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any  proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to  any applicable grace period) at the same rate to the extent lawful.  SECTION 4.02. Maintenance of Office or Agency.  The Issuer shall maintain the  offices or agencies (which may be an office of the Trustee or an affiliate of the Trustee, Registrar  or co-registrar) required under Section 2.03 where Notes may be presented for payment or  surrendered for registration of transfer or for exchange and where notices and demands to or  upon the Issuer in respect of the Notes and this Indenture may be served.  The Issuer shall give  prompt written notice to the Trustee of the location, and any change in the location, of such  office or agency.    The Issuer may also from time to time designate one or more other offices or  agencies where the Notes may be presented or surrendered for any or all such purposes and may  from time to time rescind such designations; provided that no such designation or rescission shall  in any manner relieve the Issuer of its obligation to maintain such offices or agencies as required  by Section 2.03 for such purposes.  The Issuer shall give prompt written notice to the Trustee of  any such designation or rescission and of any change in the location of any such other office or  agency.  The Issuer hereby designates the Corporate Trust Office as one such office or agency of  the Issuer in accordance with Section 2.03 hereof.  SECTION 4.03. Reports and Other Information.  (a)  Whether or not the Issuer is subject to the reporting requirements of Section  13 or 15(d) of the Exchange Act, so long as the Notes are outstanding, the Issuer will furnish to  the Holders or cause the Trustee to furnish to the Holders or post on its website or file with the  SEC for public availability:  (1) within 90 days after the end of each fiscal year (or such other period then in  effect under the rules and regulations promulgated under the Exchange Act with respect  to the filing of an Annual Report on Form 10-K by a non-accelerated filer), an annual  report as would be required to be filed with the SEC on Form 10-K if the Issuer were  required to file such reports;  (2) within 45 days after the end of each of the first three fiscal quarters of each  fiscal year (or such other period then in effect under the rules and regulations  promulgated under the Exchange Act with respect to the filing of a Quarterly Report on  Form 10-Q by a non-accelerated filer), a quarterly report as would be required to be filed  with the SEC on Form 10-Q if the Issuer were required to file such reports; and  (3) as soon as practicable (and in any event no later than five days after the period  then in effect under the rules and regulations promulgated under the Exchange Act with  respect to the filing of a Current Report on Form 8-K) after the occurrence of an event  required to be therein reported, a current report as would be required to be filed with the  SEC on Form 8-K if the Issuer were required to file such reports;  





 






  -73-  US-DOCS\122118934.6  provided, however, that, if the last day of any such period is not a Business Day, such report will  be due on the next succeeding Business Day. All such reports will be prepared in all material  respects in accordance with all of the rules and regulations of the SEC applicable to such reports,  except that such reports (x) will not be required to include (i) financial information that would be  required by Rules 3-10 and 3-16 of Regulation S-X and related interpretations, (ii) information  required by Item 10(e) of Regulation S-K or Regulation G under the Securities Act (in each case  with respect to any non-GAAP financial measures contained therein) and (iii) information  required by Item 402 or 601 of Regulation S-K and related interpretations (such information  described in clauses (i) through (iii), the “Excluded Information”) and (y) will not be subject to  the Trust Indenture Act.  The Issuer will maintain a public or non-public website on which Holders,  prospective investors and securities analysts are given access to the annual and quarterly  financial information described above. If the website containing the financial reports is not  available to the public, the Issuer will direct Holders, prospective investors and securities  analysts on its publicly available website to contact the Issuer to obtain access to the non-public  website.  (b)  If the Issuer files reports with the SEC in accordance with Section 13 of 15(d)  of the Exchange Act, whether voluntarily or otherwise, in compliance with the filing periods  specified in Section 4.03(a) hereof, then the Issuer shall be deemed to comply with this Section  4.03. For the avoidance of doubt, such reports need not include the Excluded Information.  (c)  To the extent not satisfied by the foregoing, the Issuer will agree that, for so  long as any Notes are outstanding, it will furnish to Holders, securities analysts and prospective  investors in the Notes, upon their request, the information required to be delivered pursuant to  Rule 144A(d)(4) under the Securities Act.   (d)  Notwithstanding anything herein to the contrary, the Issuer will not be  deemed to have failed to comply with any of its obligations under this Section 4.03 for purposes  of clause (3) under Section 6.01 hereof until 120 days after the date any report is due under this  Section 4.03, and failure to comply with this Section 4.03 shall be automatically cured when the  Issuer provides all required reports to the Holders (including, without limitation, to the Trustee  for delivery to the Holders) or files all required reports with the SEC.  The Trustee shall have no responsibility to determine whether any reports have been filed by the  Issuer or posted on the Issuer’s website.   Delivery of such reports, information and documents to the Trustee is for informational purposes  only and the Trustee’s receipt of such shall not constitute constructive notice of any information  contained therein or determinable from information contained therein, including the Issuer’s  compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely  exclusively on Officer’s Certificates).  SECTION 4.04. Compliance Certificate.  (a)  The Issuer shall deliver to the Trustee, within 90 days after the end of each  fiscal year ending after the Issue Date (or 120 days after the first fiscal year ending after the Issue  





 






  -74-  US-DOCS\122118934.6  Date), a certificate from its principal executive officer, principal financial officer or principal  accounting officer stating that a review of the activities of the Issuer and its Restricted  Subsidiaries during the preceding fiscal year has been made under the supervision of the signing  Officer with a view to determining whether the Issuer and its Restricted Subsidiaries have kept,  observed, performed and fulfilled their obligations under this Indenture, and further stating, as to  such Officer signing such certificate, that to the best of his or her knowledge, on behalf of the  Issuer, the Issuer and its Restricted Subsidiaries have kept, observed, performed and fulfilled in  all material respects each and every condition and covenant contained in this Indenture and no  Default has occurred and is continuing with respect to any of the terms, provisions, covenants  and conditions in this Indenture (or, if a Default shall have occurred and is continuing, describing  all such Defaults of which he or she may have knowledge and what action the Issuer is taking or  proposes to take with respect thereto).  (b)  When any Default has occurred and is continuing under this Indenture, or if  the Trustee or the holder of any other evidence of Indebtedness of the Issuer or any Subsidiary  gives any notice or takes any other action with respect to a claimed Default, the Issuer shall  promptly (which shall be no more than 20 Business Days after becoming aware of such Default)  deliver to the Trustee by registered or certified mail or by facsimile transmission an Officer’s  Certificate specifying such event and what action the Issuer is taking or proposes to take with  respect thereto, unless such Default has been cured.  SECTION 4.05. Taxes.  The Issuer shall pay or discharge, and shall cause each of  its Restricted Subsidiaries to pay or discharge, prior to delinquency, all material taxes, lawful  assessments, and governmental levies except such as are contested in good faith and by  appropriate actions or where the failure to effect such payment or discharge is not adverse in any  material respect to the Holders of the Notes.  SECTION 4.06. Stay, Extension and Usury Laws.  The Issuer and each of the  Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time  insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any  stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may  affect the covenants or the performance of this Indenture; and the Issuer and each of the  Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or  advantage of any such law, and covenant that they shall not, by resort to any such law, hinder,  delay or impede the execution of any power herein granted to the Trustee, but shall suffer and  permit the execution of every such power as though no such law has been enacted.  SECTION 4.07. Limitation on Restricted Payments.  (a)  The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,  directly or indirectly:  (I) declare or pay any dividend or make any payment or distribution on account of  the Issuer’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend,  payment or distribution payable in connection with any merger or consolidation other  than:  





 






  -75-  US-DOCS\122118934.6  (A)  dividends or distributions by the Issuer payable solely in Equity  Interests (other than Disqualified Stock) of the Issuer or in options, warrants or  other rights to purchase such Equity Interests of the Issuer; or  (B)  dividends or distributions by a Restricted Subsidiary so long as, in the  case of any dividend or distribution payable on or in respect of any class or series  of securities issued by a Restricted Subsidiary other than a Wholly Owned  Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share  of such dividend or distribution in accordance with its Equity Interests in such  class or series of securities;  (II) purchase, redeem, defease or otherwise acquire or retire for value any Equity  Interests of the Issuer , including in connection with any merger or consolidation, in each  case, held by Persons other than the Issuer or any Restricted Subsidiary of the Issuer;  (III) make any principal payment on, or redeem, repurchase, defease or otherwise  acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund  payment or maturity, any Subordinated Indebtedness, other than:  (A)  Indebtedness permitted under clauses (7), (8) and (9) of  Section 4.09(b) hereof; or  (B)  the payment, redemption, repurchase, defeasance, acquisition or  retirement of Subordinated Indebtedness in anticipation of satisfying a sinking  fund obligation, principal installment or final maturity, in each case due within  one year of the date of payment, redemption, repurchase, defeasance, acquisition  or retirement; or  (IV) make any Restricted Investment  (all such payments and other actions set forth in clauses (I) through (IV) in this Section 4.07(a)  (other than any exceptions thereto) being collectively referred to as “Restricted Payments”),  unless, at the time of such Restricted Payment:  (1) no Default or Event of Default shall have occurred and be continuing or would  occur as a consequence thereof;  (2) immediately after giving effect to such transaction on a pro forma basis, the  Issuer could incur $1.00 of additional Indebtedness pursuant to the Fixed Charge  Coverage Test set forth in Section 4.09(a) hereof; and  (3) such Restricted Payment, together with the aggregate amount of all other  Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue  Date (including Restricted Payments permitted by clause (1) of, but excluding all other  Restricted Payments permitted by, Section 4.07(b) hereof), is less than the sum of  (without duplication):  





 






  -76-  US-DOCS\122118934.6  (A)  50% of the Consolidated Net Income of the Issuer for the period  (taken as one accounting period) beginning on January 31, 2021 to the end of the  Issuer’s most recently ended fiscal quarter for which internal financial statements  are available at the time of such Restricted Payment (which amount may not be  less than zero); plus  (B)  100% of the aggregate net cash proceeds and the fair market value of  marketable securities or other property received by the Issuer after the Issue Date  (other than net cash proceeds to the extent such net cash proceeds have been used  to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to  clause (12) of Section 4.09(b) hereof) from the issue or sale of:  (i)  Equity Interests of the Issuer, including Treasury Capital Stock,  but excluding cash proceeds and the fair market value of marketable  securities or other property received from the sale of:  (x)  Equity Interests to any future, present or former  employee, officer, director, member of management or consultant  (or the estate, heirs, family members, spouse, former spouse,  domestic partner or former domestic partner of any of the  foregoing) of the Issuer or any of the Issuer’s Subsidiaries after the  Issue Date to the extent such amounts have been applied to  Restricted Payments made in accordance with clause (4) of  Section 4.07(b) hereof; and  (y)  Designated Preferred Stock; or  (ii)  Indebtedness of the Issuer or a Restricted Subsidiary that has  been converted into or exchanged for such Equity Interests of the Issuer;  provided that this clause (B) shall not include the proceeds from (W) Refunding  Capital Stock applied in accordance with clause (2) of Section 4.07(b) hereof,  (X) Equity Interests or convertible debt securities of the Issuer sold to a Restricted  Subsidiary, (Y) Disqualified Stock or debt securities that have been converted into  Disqualified Stock or (Z) Excluded Contributions; plus  (C)  the aggregate amount by which Indebtedness of the Issuer or any  Restricted Subsidiary is reduced on the Issuer’s consolidated balance sheet on or  after the Issue Date upon the conversion or exchange into Equity Interests (other  than Disqualified Stock) of the Issuer of any Indebtedness issued or sold on or  prior to the Issue Date that is convertible or exchangeable for Equity Interests  (other than Disqualified Stock) of the Issuer; plus  (D)  100% of the aggregate amount of cash and the fair market value of  marketable securities or other property contributed to the capital of the Issuer after  the Issue Date (other than (i) net cash proceeds to the extent such net cash  proceeds have been used to incur Indebtedness or issue Disqualified Stock or  Preferred Stock pursuant to clause (12) of Section 4.09(b) hereof, (ii)  





 






  -77-  US-DOCS\122118934.6  contributions by a Restricted Subsidiary and (iii) any Excluded Contributions);  plus  (E)  100% of the aggregate amount received in cash and the fair market  value of marketable securities or other property received by means of:  (i)  the sale or other disposition (other than to the Issuer or a  Restricted Subsidiary) of, or other returns on Investments from, Restricted  Investments made by the Issuer or its Restricted Subsidiaries and  repurchases and redemptions of such Restricted Investments from the  Issuer or its Restricted Subsidiaries and repayments of loans or advances,  and releases of guarantees, which constitute Restricted Investments by the  Issuer or its Restricted Subsidiaries (other than, in each case, to the extent  that the Restricted Investment was made pursuant to clause (10) of Section  4.07(b) hereof), in each case, after the Issue Date; or  (ii)  the sale (other than to the Issuer or a Restricted Subsidiary) of  the Equity Interests of an Unrestricted Subsidiary or a distribution from an  Unrestricted Subsidiary (other than, in each case, to the extent the  Investment in such Unrestricted Subsidiary was made by the Issuer or a  Restricted Subsidiary pursuant to clause (10) of Section 4.07(b) hereof or  to the extent such Investment constituted a Permitted Investment made  after the Issue Date) or a dividend from an Unrestricted Subsidiary after  the Issue Date; plus  (F)  in the case of the redesignation of an Unrestricted Subsidiary as a  Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary  into the Issuer or a Restricted Subsidiary or the transfer of all or substantially all  of the assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary  after the Issue Date, the fair market value of the Investment in such Unrestricted  Subsidiary (or the assets transferred), at the time of the redesignation of such  Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger,  consolidation or transfer of assets (other than, in each case, to the extent the  Investment in such Unrestricted Subsidiary was made by the Issuer or a Restricted  Subsidiary pursuant to clause (10) of Section 4.07(b) hereof or to the extent such  Investment constituted a Permitted Investment made after the Issue Date); plus  (G)  $125.0 million.  (b)  The provisions of Section 4.07(a) hereof will not prohibit:  (1) the payment of any dividend or distribution or the consummation of any  irrevocable redemption within 60 days after the date of declaration thereof or the giving  of the redemption notice, if at the date of declaration or the giving of such notice such  payment would have complied with the provisions of this Indenture;  (2) (a) the redemption, repurchase, retirement or other acquisition of any Equity  Interests (“Treasury Capital Stock”) or Subordinated Indebtedness of the Issuer, in  





 






  -78-  US-DOCS\122118934.6  exchange for, or out of the proceeds of the sale (within 90 days of such redemption,  repurchase, retirement or other acquisition or other Restricted Payment) (other than to a  Restricted Subsidiary) of, Equity Interests of the Issuer (other than any Disqualified  Stock) (“Refunding Capital Stock”), (b) if, immediately prior to the retirement of  Treasury Capital Stock, the declaration and payment of dividends thereon was permitted  under clause (6) of this Section 4.07(b), the declaration and payment of dividends on the  Refunding Capital Stock in an aggregate amount per year no greater than the aggregate  amount of dividends per annum that were declarable and payable on such Treasury  Capital Stock immediately prior to such retirement, and (c) the declaration and payment  of accrued dividends on Treasury Capital Stock out of the proceeds of a sale of  Refunding Capital Stock (other than to a Restricted Subsidiary or to an employee stock  ownership plan or any trust established by the Issuer or any Restricted Subsidiary) made  within 90 days of such sale;  (3) the prepayment, defeasance, redemption, repurchase, exchange or other  acquisition or retirement of (A) Subordinated Indebtedness of the Issuer or any  Subsidiary Guarantor made by exchange for, or out of the proceeds of the sale (made  within 90 days of such prepayment, defeasance, redemption, repurchase, exchange,  acquisition or retirement) of, new Indebtedness of the Issuer or any Subsidiary Guarantor,  as the case may be, or (B) Disqualified Stock of the Issuer or any Subsidiary Guarantor  made by exchange for, or out of the proceeds of the sale (made within 90 days of such  prepayment, defeasance, redemption, repurchase, exchange, acquisition or retirement) of,  Disqualified Stock of the Issuer or any Subsidiary Guarantor, which, in each case, is  incurred or issued, as applicable, in compliance with Section 4.09 hereof so long as:  (A)  the principal amount (or accreted value, if applicable) of such new  Indebtedness or the liquidation preference of such new Disqualified Stock does  not exceed the principal amount of (or accreted value, if applicable), plus any  accrued and unpaid interest on, the Subordinated Indebtedness or the liquidation  preference of, plus any accrued and unpaid dividends on, the Disqualified Stock  being so prepaid, defeased, redeemed, repurchased, exchanged, acquired or  retired, plus the amount of any premium (including tender premiums) required to  be paid under the terms of the instrument governing the Subordinated  Indebtedness or Disqualified Stock being so prepaid, defeased, redeemed,  repurchased, exchanged, acquired or retired, defeasance costs and any fees and  expenses incurred in connection therewith;  (B)  such new Indebtedness or Disqualified Stock is subordinated to the  Notes or the applicable Guarantee at least to the same extent as such Subordinated  Indebtedness or Disqualified Stock so prepaid, defeased, redeemed, repurchased,  exchanged, acquired or retired;  (C)  such new Indebtedness or Disqualified Stock has a final scheduled  maturity date equal to or later than the final scheduled maturity date of the  Subordinated Indebtedness or Disqualified Stock being so prepaid, defeased,  redeemed, repurchased, exchanged, acquired or retired (or, if earlier, the date that  is 91 days after the maturity date of the Notes); and  





 






  -79-  US-DOCS\122118934.6  (D)  such new Indebtedness or Disqualified Stock has a Weighted Average  Life to Maturity equal to or greater than the remaining Weighted Average Life to  Maturity of the Subordinated Indebtedness or Disqualified Stock being so  prepaid, defeased, redeemed, repurchased, exchanged, acquired or retired (or, if  earlier, the date that is 91 days after the maturity date of the Notes);  (4) a Restricted Payment to pay for the repurchase, redemption, retirement or  other acquisition or retirement for value of Equity Interests (other than Disqualified  Stock) of the Issuer held by any future, present or former employee, officer, director,  member of management or consultant (or the estate, heirs, family members, spouse,  former spouse, domestic partner or former domestic partner of any of the foregoing) of  the Issuer or any of its Subsidiaries (and including, for the avoidance of doubt, any  principal and interest on any notes issued by the Issuer in connection with such  repurchase, redemption, retirement or other acquisition and any tax related thereto);  provided that the aggregate Restricted Payments made under this clause (4) do not exceed  in any fiscal year $20.0 million (with unused amounts in any fiscal year being carried  over to succeeding fiscal years subject to a maximum (without giving effect to the  following proviso) of $40.0 million in any fiscal year); provided further that such amount  in any fiscal year may be increased by an amount not to exceed:  (A)  the net cash proceeds from the sale of Equity Interests (other than  Disqualified Stock) of the Issuer to any future, present or former employee,  officer, director, member of management or consultant (or the estate, heirs, family  members, spouse, former spouse, domestic partner or former domestic partner of  any of the foregoing) of the Issuer or any of its Subsidiaries that occurs after the  Issue Date, to the extent the net cash proceeds from the sale of such Equity  Interests have not otherwise been applied to the payment of Restricted Payments  by virtue of clause (3) of Section 4.07(a) hereof; plus  (B)  the cash proceeds of key man life insurance policies received by the  Issuer or its Restricted Subsidiaries after the Issue Date; plus  (C)  the amount of any cash bonuses otherwise payable to employees,  officers, directors, members of management or consultants of the Issuer or any of  its Subsidiaries that are foregone in return for receipt of Equity Interests; less  (D)  the amount of any Restricted Payments previously made with the cash  proceeds described in clauses (A), (B) and (C) of this clause (4);  and provided further that cancellation of Indebtedness owing to the Issuer from any  future, present or former employee, officer, director, member of management or  consultant (or the estate, heirs, family members, spouse, former spouse, domestic partner  or former domestic partner of any of the foregoing) of the Issuer or any of the Issuer’s  Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Issuer  will not be deemed to constitute a Restricted Payment for purposes of this Section 4.07 or  any other provision of this Indenture;  





 






  -80-  US-DOCS\122118934.6  (5) the declaration and payment of dividends to holders of any class or series of  Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any class or series  of Preferred Stock of any Restricted Subsidiary issued in accordance with Section 4.09  hereof to the extent such dividends are included in the definition of “Fixed Charges”;  (6) (A)  the declaration and payment of dividends to holders of any class or series  of Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer or any  of its Restricted Subsidiaries after the Issue Date; or  (B)  the declaration and payment of dividends on Refunding Capital Stock that  is Preferred Stock in excess of the dividends declarable and payable thereon  pursuant to clause (2) of this Section 4.07(b);  provided, in the case of each of (A) and (B) of this clause (6), that for the most recently  ended four full fiscal quarters for which internal financial statements are available  immediately preceding the date of issuance of such Designated Preferred Stock or the  declaration of such dividends on Refunding Capital Stock that is Preferred Stock, after  giving effect to such issuance or declaration on a pro forma basis, the Issuer and its  Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage  Ratio of at least 2.00 to 1.00;  (7) (a) payments made or expected to be made by the Issuer or any Restricted  Subsidiary in respect of withholding or similar taxes payable upon exercise or settlement,  as the case may be, of Equity Interests by any future, present or former employee, officer,  director, member of management or consultant (or the estate, heirs, family members,  spouse, former spouse, domestic partner or former domestic partner of any of the  foregoing) of the Issuer or any of its Subsidiaries; and (b) repurchases of Equity Interests  deemed to occur upon exercise or settlement, as the case may be, of options, warrants or  similar instruments if such Equity Interests represent a portion of the exercise price  thereof or required withholding or similar taxes;  (8) so long as no Default or Event of Default shall have occurred and be  continuing or would result therefrom, dividends or distributions on, or the redemption,  repurchase, retirement or other acquisition of the Issuer’s common stock in an aggregate  amount not to exceed $75.0 million in any fiscal year (with unused amounts in any fiscal  year being carried over to succeeding fiscal years subject to a maximum of $150.0  million in any fiscal year);  (9) Restricted Payments in an amount equal to the amount of Excluded  Contributions;  (10) other Restricted Payments in an aggregate amount, taken together with all  other Restricted Payments made pursuant to this clause (10) that are at the time  outstanding, not to exceed the greater of $175.0 million and 50.0% of EBITDA at such  time;  (11) distributions or payments of Receivables Fees;  





 






  -81-  US-DOCS\122118934.6  (12) any Restricted Payment made in connection with or to fund the Transactions  (including, for the avoidance of doubt, the repayment of the outstanding Convertible  Notes, whether at maturity or otherwise) and the fees and expenses related thereto;  (13) the repurchase, redemption or other acquisition or retirement for value of any  Subordinated Indebtedness pursuant to the provisions similar to those described under  Section 4.10 and Section 4.14 hereof; provided that all Notes validly tendered by Holders  of such Notes in connection with a Change of Control Offer or Asset Sale Offer, as  applicable, have been repurchased, redeemed, acquired or retired for value;  (14) the distribution, by dividend or otherwise, of shares of Capital Stock of, or  Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries  (other than Unrestricted Subsidiaries, the primary assets of which are Cash Equivalents);  (15) (i) the repurchase, redemption or other acquisition for value of Equity  Interests deemed to occur in connection with paying cash in lieu of issuing fractional  shares in connection with any dividend, distribution, split, reverse split, merger,  consolidation, amalgamation or other business combination, in each case, to the extent  not prohibited by this Indenture and (ii) cash payments to employees, officers, directors,  members of management or consultants in respect of phantom stock to the extent  considered a Restricted Payment;  (16) the making of any Restricted Payment if, at the time of the making of such  payment and after giving pro forma effect thereto (including to the incurrence of any  Indebtedness to finance such payment), the Consolidated Total Debt Ratio would not  exceed 3.25 to 1.00; and  (17) the entry into, amendment, exercise, termination or settlement (in whole or in  part) of a Convertible Bond Hedge Transaction, a Capped Call Transaction or a Warrant  Transaction and any payments or deliveries in connection with any of the foregoing.  For purposes of determining compliance with this Section 4.07, in the event that a  proposed Restricted Payment (or a portion thereof) meets the criteria of clauses (1) through (17)  of this Section 4.07(b) or is entitled to be made pursuant to Section 4.07(a) hereof, the Issuer will  be entitled to classify or later reclassify (based on circumstances existing on the date of such  reclassification) such Restricted Payment (or portion thereof) between such clauses (1) through  (17) and Section 4.07(a) hereof in a manner that otherwise complies with this Section 4.07.  (c)  As of the Issue Date, all of the Issuer’s Subsidiaries will be Restricted  Subsidiaries.  The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted  Subsidiary except pursuant to the penultimate sentence of the definition of “Unrestricted  Subsidiary.”  For purposes of designating any Restricted Subsidiary as an Unrestricted  Subsidiary, all outstanding Investments by the Issuer and its Restricted Subsidiaries (except to  the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments in an  amount determined as set forth in the penultimate sentence of the definition of “Investments.”   Such designation will be permitted only if a Restricted Payment in such amount would be  permitted at such time, whether pursuant to Section 4.07(a) hereof or under clause (9), (10) or  





 






  -82-  US-DOCS\122118934.6  (16) of Section 4.07(b) hereof, or pursuant to the definition of “Permitted Investments,” and, if  such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.  Unrestricted  Subsidiaries will not be subject to any of the covenants set forth in this Indenture.  SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted  Subsidiaries.  (a)  The Issuer shall not, and shall not permit any of its Restricted Subsidiaries  that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or  become effective any consensual encumbrance or consensual restriction on the ability of any  such Restricted Subsidiary that is not a Guarantor to:  (1) (A) pay a dividend or make any other distribution to the Issuer or any  Guarantor on its Capital Stock or with respect to any other interest or participation in, or  measured by, its profits, or  (B) pay any Indebtedness owed to the Issuer or any Guarantor;  (2) make any loan or advance to the Issuer or any Guarantor; or  (3) sell, lease or transfer any of its properties or assets to the Issuer or any  Guarantor.  (b)  The restrictions in Section 4.08(a) hereof shall not apply to encumbrances or  restrictions existing under or by reason of:  (1) contractual encumbrances or restrictions in effect on the Issue Date, including  pursuant to the Senior Credit Facility, and Hedging Obligations;  (2) this Indenture, the Notes and the guarantees thereof;  (3) purchase money obligations for property acquired in the ordinary course of  business and Capitalized Lease Obligations that impose restrictions of the nature  discussed in clause (3) of Section 4.08(a) hereof on the property so acquired;  (4) applicable law or any applicable rule, regulation or order;  (5) any agreement or other instrument of a Person acquired by or merged or  consolidated with or into or wound up into the Issuer or any of its Restricted Subsidiaries,  or of an Unrestricted Subsidiary that is designated as a Restricted Subsidiary, or that is  assumed in connection with the acquisition of assets from such Person, in each case, that  is in existence at the time of such transaction (but, in any such case, not created in  contemplation thereof), which encumbrance or restriction is not applicable to any Person,  or the properties or assets of any Person, other than the Person and its Subsidiaries, or the  property or assets of the Person and its Subsidiaries, so acquired, designated or assumed;  (6) any contract or agreement for the sale of assets, including any customary  restriction with respect to a Subsidiary of the Issuer pursuant to an agreement that has  





 






  -83-  US-DOCS\122118934.6  been entered into for the sale or other disposition of all or substantially all of the Capital  Stock or assets of such Subsidiary;  (7) Secured Indebtedness otherwise permitted to be incurred pursuant to Section  4.09 hereof and Section 4.12 hereof that limit the right of the debtor to dispose of the  assets securing such Indebtedness;  (8) restrictions on cash or other deposits or net worth imposed by customers under  contracts entered into in the ordinary course of business;  (9) other Indebtedness, Disqualified Stock or Preferred Stock permitted to be  incurred or issued subsequent to the Issue Date pursuant to Section 4.09 hereof and either  (A) the provisions relating to such encumbrance or restriction contained in such  Indebtedness, Disqualified Stock or Preferred Stock are not materially more restrictive,  taken as a whole, as determined by the Issuer in good faith, than the provisions contained  in the Senior Credit Facility as in effect on the Issue Date or (B) any such encumbrance  or restriction contained in such Indebtedness, Disqualified Stock or Preferred Stock will  not materially affect the Issuer’s ability to make principal or interest payments on the  Notes when due, as determined by the Issuer in good faith;   (10) customary provisions in any operating agreement, joint venture agreement,  asset sale agreement or other similar agreement or other similar arrangements;  (11) customary provisions contained in leases, sub-leases, licenses, sub-licenses  or similar agreements, including with respect to intellectual property, in each case,  entered into in the ordinary course of business;  (12) any encumbrance or restriction of the type referred to in clauses (1), (2) and  (3) of Section 4.08(a) hereof imposed by any amendment, modification, restatement,  renewal, increase, supplement, refunding, replacement or refinancing of any of the  contracts, instruments or obligations referred to in clauses (1) through (11) and (13)  through (15) of this Section 4.08(b); provided that such amendment, modification,  restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in  the good faith judgment of the Issuer, not materially more restrictive taken as a whole  with respect to such dividend and other payment restrictions than those prior to such  amendment, modification, restatement, renewal, increase, supplement, refunding,  replacement or refinancing;  (13) restrictions created in connection with any Qualified Receivables Facility  that, in the good faith determination of the Issuer, are necessary or advisable to effect  such Qualified Receivables Facility;  (14) restrictions or conditions contained in any trading, netting, operating,  construction, service, supply, purchase, sale or other agreement to which the Issuer or any  of its Restricted Subsidiaries is a party entered into in the ordinary course of business;  provided that such agreement prohibits the encumbrance of solely the property or assets  of the Issuer or such Restricted Subsidiary that are subject to such agreement, the  payment rights arising thereunder or the proceeds thereof and does not extend to any  





 






  -84-  US-DOCS\122118934.6  other asset or property of the Issuer or such Restricted Subsidiary or the assets or  property of another Restricted Subsidiary;  (15) restrictions contained in agreements (other than Indebtedness) arising in the  ordinary course of business; provided that such restrictions do not prohibit (except upon  an event of default thereunder) the payment of dividends in an amount sufficient, as  determined by the Issuer in good faith, to make principal or interest payments on the  Notes when due; and  (16) restrictions under agreements evidencing or governing or otherwise relating  to Indebtedness of Restricted Subsidiaries that are not Guarantors; provided that such  restrictions apply only with respect to the assets of Restricted Subsidiaries that are not  Guarantors.   SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of  Disqualified Stock and Preferred Stock.  (a)  The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,  directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or  indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an  “incurrence”), with respect to any Indebtedness (including Acquired Indebtedness), and the  Issuer will not issue any shares of Disqualified Stock and will not permit any Restricted  Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Issuer  may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock,  and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue  shares of Disqualified Stock and issue shares of Preferred Stock, if the Fixed Charge Coverage  Ratio on a consolidated basis for the Issuer and its Restricted Subsidiaries’ most recently ended  four fiscal quarters for which internal financial statements are available immediately preceding  the date on which such additional Indebtedness is incurred or such Disqualified Stock or  Preferred Stock is issued would have been at least 2.00 to 1.00 (the “Fixed Charge Coverage  Test”), determined on a pro forma basis (including a pro forma application of the net proceeds  therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or  Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom  had occurred at the beginning of such four-quarter period; provided further that the amount of  Indebtedness (including Acquired Indebtedness), Disqualified Stock and Preferred Stock that  may be incurred or issued, as applicable, pursuant to the foregoing by Restricted Subsidiaries  that are not Guarantors shall not (together with any Refinancing Indebtedness in respect thereof)  exceed the greater of $135.0 million and 35.0% of EBITDA.  (b)  The provisions of Section 4.09(a) hereof shall not apply to:  (1) the incurrence of Indebtedness under Credit Facilities by the Issuer or any of  its Restricted Subsidiaries and the issuance and creation of letters of credit and bankers’  acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to  have a principal amount equal to the face amount thereof); provided that either (x)  immediately after giving effect to any such incurrence or issuance, the then-outstanding  aggregate principal amount of all Indebtedness incurred or issued under this clause (1)(x),  





 






  -85-  US-DOCS\122118934.6  together with any Refinancing Indebtedness under clause (1)(y) below in respect thereof,  does not exceed the greater of (a) $1,350.0 million and (b) the maximum amount of  Indebtedness such that, after giving pro forma effect to such incurrence (in a manner  consistent with the calculation of the Fixed Charge Coverage Ratio), the Consolidated  Secured Debt Ratio of the Issuer does not exceed 3.50 to 1.00 (provided that, for  purposes of determining the amount of Indebtedness that may be incurred pursuant to this  subclause (b), all Indebtedness incurred pursuant to this subclause (b) shall be deemed to  be secured for purposes of the definition of “Consolidated Secured Debt Ratio”); or (y)  such Indebtedness constitutes Refinancing Indebtedness in respect of Indebtedness  incurred under clause (1)(x) above or this clause (1)(y), and that no Restricted Subsidiary  that is not a Guarantor may guarantee such Refinancing Indebtedness;  (2) the incurrence by the Issuer and any Guarantor of Indebtedness represented by  the Notes (including any Guarantee) (other than any Additional Notes);  (3) Indebtedness of the Issuer and its Subsidiaries in existence on the Issue Date,  including the Convertible Notes (other than Indebtedness described in clauses (1) and (2)  of this Section 4.09(b));  (4) Indebtedness (including Capitalized Lease Obligations) incurred or  Disqualified Stock issued by the Issuer or any of its Restricted Subsidiaries and Preferred  Stock issued by any Restricted Subsidiary, to finance the acquisition, construction, repair,  replacement or improvement of property (real or personal), equipment or other fixed or  capital assets; provided that such Indebtedness exists at the date of the applicable  acquisition, construction, repair, replacement or improvement or is created within 365  days thereafter; provided further that the aggregate principal amount at any one time  outstanding pursuant to this clause (4) does not exceed the greater of $125.0 million and  35.0% of EBITDA;  (5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries with  respect to letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or  similar instruments issued or created in the ordinary course of business, including letters  of credit in respect of workers’ compensation claims, health, disability or other employee  benefits or property, casualty or liability insurance or self-insurance or other Indebtedness  with respect to reimbursement-type obligations regarding workers’ compensation claims;  (6) Indebtedness arising from agreements of the Issuer or its Restricted  Subsidiaries providing for indemnification, adjustment of purchase price, earn-outs or  similar obligations, in each case, incurred or assumed in connection with the acquisition  or disposition of any business, assets or a Subsidiary, other than guarantees of  Indebtedness incurred by any Person acquiring all or any portion of such business, assets  or a Subsidiary for the purpose of financing such acquisition;  (7) Indebtedness of the Issuer to a Restricted Subsidiary; provided that any such  Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is expressly  subordinated in right of payment to the Notes; provided further that any subsequent  issuance or transfer of any Capital Stock or any other event that results in any such  





 






  -86-  US-DOCS\122118934.6  Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent  transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or  any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure  thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not  permitted by this clause (7);  (8) Indebtedness of a Restricted Subsidiary to the Issuer or another Restricted  Subsidiary; provided that, if a Guarantor incurs such Indebtedness to a Restricted  Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated in right of  payment to the Guarantee of such Guarantor; provided further that any subsequent  transfer of any Capital Stock or any other event that results in any such Restricted  Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such  Indebtedness (except to the Issuer or another Restricted Subsidiary or any pledge of such  Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be  deemed, in each case, to be an incurrence of such Indebtedness not permitted by this  clause (8);  (9) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer or  another Restricted Subsidiary; provided that any subsequent issuance or transfer of any  Capital Stock or any other event that results in any such Restricted Subsidiary ceasing to  be a Restricted Subsidiary or any other subsequent transfer of any such shares of  Preferred Stock (except to the Issuer or another Restricted Subsidiary or any pledge of  such Preferred Stock constituting a Permitted Lien (but not foreclosure thereon)) shall be  deemed in each case to be an issuance of such shares of Preferred Stock not permitted by  this clause (9);  (10) Hedging Obligations (excluding Hedging Obligations entered into for  speculative purposes) for the purpose of limiting interest rate risk with respect to any  Indebtedness permitted to be incurred pursuant to this Section 4.09, exchange rate risk or  commodity pricing risk;  (11) obligations in respect of self-insurance and obligations in respect of  performance, bid, warranty, indemnity, release, appeal and surety bonds and performance  and completion guarantees and similar obligations provided by the Issuer or any of its  Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or  similar instruments related thereto, and obligations arising under any indemnity  agreement relating thereto, in each case, in the ordinary course of business or consistent  with past practice or industry practices;  (12) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,  Disqualified Stock or Preferred Stock of any Restricted Subsidiary equal to 100.0% of the  net cash proceeds received by the Issuer after the Issue Date from the issue or sale of  Equity Interests of the Issuer or cash contributed to the capital of the Issuer (in each case,  other than proceeds of Excluded Contributions or Disqualified Stock or sales of Equity  Interests to the Issuer or any of its Subsidiaries) as determined in accordance with  clauses (3)(B) and (3)(D) of Section 4.07(a) hereof to the extent such net cash proceeds  or cash have not been applied pursuant to such clauses to make Restricted Payments or to  





 






  -87-  US-DOCS\122118934.6  make other Investments, payments or exchanges pursuant to Section 4.07(b) hereof or to  make Permitted Investments (other than Permitted Investments specified in clauses (1)  and (3) of the definition thereof);  (13) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness or  the issuance of Disqualified Stock or the issuance by any Restricted Subsidiary of  Preferred Stock which serves to extend, replace, refund, refinance, renew or defease any  Indebtedness, Disqualified Stock or Preferred Stock incurred or issued as permitted under  Section 4.09(a) hereof and clauses (2), (3), (4) and (12) of this Section 4.09(b), this  clause (13) and clause (14) of this Section 4.09(b) or any Indebtedness, Disqualified  Stock or Preferred Stock issued to so extend, replace, refund, refinance, renew or defease  such Indebtedness, Disqualified Stock or Preferred Stock including additional  Indebtedness, Disqualified Stock or Preferred Stock incurred or issued to pay premiums  (including tender premiums), defeasance costs and accrued interest, fees and expenses in  connection therewith, including in connection with the entry into, amendment, exercise,  termination or settlement (in whole or in part) of a Convertible Bond Hedge Transaction,  a Capped Call Transaction or a Warrant Transaction (the “Refinancing Indebtedness”)  prior to its respective maturity; provided that such Refinancing Indebtedness:  (A)  has a Weighted Average Life to Maturity at the time such  Refinancing Indebtedness is incurred that is not less than the remaining Weighted  Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred  Stock being extended, replaced, refunded, refinanced, renewed or defeased,  (B)  to the extent such Refinancing Indebtedness extends, replaces,  refunds, refinances, renews or defeases (i) Indebtedness subordinated or pari  passu to the Notes or any Guarantee thereof, such Refinancing Indebtedness is  subordinated or pari passu to the Notes or the Guarantee thereof at least to the  same extent as the Indebtedness being extended, replaced, refunded, refinanced,  renewed or defeased or (ii) Disqualified Stock or Preferred Stock, such  Refinancing Indebtedness must be Disqualified Stock or Preferred Stock,  respectively, and  (C)  shall not include:  (i)  Indebtedness, Disqualified Stock or Preferred Stock of a  Subsidiary of the Issuer that is not a Guarantor that refinances  Indebtedness, Disqualified Stock or Preferred Stock of the Issuer;  (ii)  Indebtedness, Disqualified Stock or Preferred Stock of a  Subsidiary of the Issuer that is not a Guarantor that refinances  Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor; or  (iii)  Indebtedness or Disqualified Stock of the Issuer or  Indebtedness, Disqualified Stock or Preferred Stock of a Restricted  Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred  Stock of an Unrestricted Subsidiary; and  





 






  -88-  US-DOCS\122118934.6  provided further that subclause (A) of this clause (13) shall not apply to any  extension, replacement, refunding, refinancing, renewal or defeasance of  Indebtedness that matures prior to the Notes;  (14) (x) Indebtedness or Disqualified Stock of the Issuer or Indebtedness,  Disqualified Stock or Preferred Stock of a Restricted Subsidiary incurred or issued to  finance an acquisition (or other purchase of assets), merger or consolidation or (y)  Indebtedness, Disqualified Stock or Preferred Stock of Persons that are acquired by the  Issuer or any Restricted Subsidiary or merged into or consolidated with or into the Issuer  or a Restricted Subsidiary in accordance with the terms of this Indenture, either   (A)  the Issuer would be permitted to incur at least $1.00 of additional  Indebtedness pursuant to the Fixed Charge Coverage Test set forth in  Section 4.09(a) hereof, or  (B)  the Fixed Charge Coverage Ratio of the Issuer and the Restricted  Subsidiaries is equal to or greater than immediately prior to such acquisition,  merger or consolidation;  (15) Indebtedness (a) arising from the honoring by a bank or other financial  institution of a check, draft or similar instrument drawn against insufficient funds in the  ordinary course of business (provided that such Indebtedness is extinguished within 30  Business Days of its incurrence), (b) in respect of Bank Products and (c) arising under  indemnity agreements to title insurers to cause such title insurers to issue to collateral or  other agents under any Credit Facility mortgage title insurance policies;  (16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a  letter of credit issued pursuant to any Credit Facilities, in a principal amount not in excess  of the stated amount of such letter of credit;   (17) (A)  any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness  or other obligations of any Restricted Subsidiary so long as the incurrence of such  Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this  Indenture, or  (B)  any guarantee by a Restricted Subsidiary of Indebtedness or other  obligations of the Issuer so long as the incurrence of such Indebtedness incurred  by the Issuer is permitted under the terms of this Indenture;  (18) (a) Indebtedness issued by the Issuer or any of its Restricted Subsidiaries to  future, present or former officers, directors, employees, members of management and  consultants (or the estate, heirs, family members, spouse, former spouse, domestic partner  or former domestic partner of any of the foregoing), in each case, to finance the purchase  or redemption of Equity Interests of the Issuer to the extent described in clause (4) of  Section 4.07(b) hereof and (b) Indebtedness representing deferred compensation to  employees or directors of the Issuer or any of its Restricted Subsidiaries in the ordinary  course of business;   





 






  -89-  US-DOCS\122118934.6  (19) to the extent constituting Indebtedness, customer deposits and advance  payments received in the ordinary course of business from customers for goods  purchased or services rendered in the ordinary course of business;  (20) Indebtedness owed on a short-term basis of no longer than 30 days to any  bank or other financial institution incurred in the ordinary course of business with such  bank or financial institution, which arises in connection with ordinary banking  arrangements (including, not limited to, cash management services, credit card  obligations, overdrafts and related liabilities from treasury, depositary and cash  management services) of the Issuer or any of its Restricted Subsidiaries;  (21) Indebtedness incurred by a Restricted Subsidiary in connection with bankers’  acceptances, discounted bills of exchange or the discounting or factoring of receivables  for credit management purposes, in each case incurred or undertaken in the ordinary  course of business on arm’s length, commercial terms on a recourse basis;  (22) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of  (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in  supply arrangements, in each case, incurred in the ordinary course of business;   (23) (a) Indebtedness of Foreign Subsidiaries of the Issuer and (b) Indebtedness,  Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not Subsidiary  Guarantors in an aggregate principal amount or liquidation preference, which, when  aggregated with the principal amount and liquidation preference of all other  Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred  pursuant to this clause (23), does not at any time outstanding exceed the greater of $75.0  million and 20.0% of EBITDA;   (24) guarantees incurred in the ordinary course of business in respect of  obligations of (or to) suppliers, vendors, distributors, customers, franchisees, lessors and  licensees that, in each case, are non-Affiliates;  (25) to the extent constituting Indebtedness, obligations of the Issuer or a  Restricted Subsidiary as seller or servicer under a Qualified Receivables Facility;  (26) Indebtedness incurred or Disqualified Stock issued by the Issuer or  Indebtedness, Disqualified Stock or Preferred Stock incurred or issued by a Restricted  Subsidiary, in each case, to the extent that the net proceeds thereof are promptly  deposited to defease, redeem or satisfy and discharge the Notes in accordance with this  Indenture; and  (27) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,  Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate  principal amount or liquidation preference, which when aggregated with the principal  amount and liquidation preference of all other Indebtedness, Disqualified Stock and  Preferred Stock then outstanding and incurred pursuant to this clause (27), does not at  any time outstanding exceed the greater of $250.0 million and 75.0% of EBITDA.  





 






  -90-  US-DOCS\122118934.6  (c)  For purposes of determining compliance with this Section 4.09:  (1) in the event that an item of Indebtedness, Disqualified Stock or Preferred  Stock (or any portion thereof) meets the criteria of more than one of the categories of  permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1)  through (27) of Section 4.09(b) hereof or is entitled to be incurred pursuant to  Section 4.09(a) hereof, the Issuer, in its sole discretion, may divide and/or classify, or at  any later time re-divide and/or reclassify, such item of Indebtedness, Disqualified Stock  or Preferred Stock (or any portion thereof) in any manner that complies with this Section  4.09; provided that all Indebtedness outstanding under the Senior Credit Facility on the  Issue Date will be treated as incurred on the Issue Date under clause (1) of  Section 4.09(b) hereof and shall not be reclassified;  (2) the Issuer will be entitled to divide and/or classify, or at any later time re- divide and/or reclassify, any item of Indebtedness in more than one of the types of  Indebtedness described in Section 4.09(a) and Section 4.09(b) hereof without giving pro  forma effect to the Indebtedness, Disqualified Stock or Preferred Stock (or any portion  thereof) incurred pursuant to Section 4.09(b) when calculating the amount of  Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) that may be  incurred pursuant to Section 4.09(a);  (3) any guarantee of, or obligation in respect of any letter of credit relating to,  Indebtedness that is otherwise included in the determination of a particular amount of  Indebtedness shall not be included in the determination of such amount of Indebtedness;  provided that the incurrence of the Indebtedness represented by such guarantee or letter  of credit, as the case may be, was in compliance with this Section 4.09; and  (4) in connection with any commitment relating to the incurrence or issuance of  Indebtedness (including any revolving loan Indebtedness), Disqualified Stock or  Preferred Stock under this Section 4.09 and the granting of any Lien to secure such  Indebtedness, the Issuer or applicable Restricted Subsidiary may designate such  incurrence or issuance and the granting of any Lien therefor as having occurred on the  date the Issuer or applicable Restricted Subsidiary receives the related commitment (such  date, the “Deemed Date”), and any related subsequent actual incurrence or issuance and  granting of such Lien therefor will be deemed for all purposes under this Indenture to  have been incurred or issued and granted on such Deemed Date, including, without  limitation, for purposes of calculating the Fixed Charge Coverage Ratio, usage of any  baskets hereunder (if applicable), the Consolidated Secured Debt Ratio, the Consolidated  Total Debt Ratio and EBITDA (and all such calculations on and after the Deemed Date  until the termination of such commitment shall be made on a pro forma basis giving  effect to the deemed incurrence or issuance, the granting of any Lien therefor and related  transactions in connection therewith).    (d)  Accrual of interest or dividends, the accretion of accreted value, the accretion  or amortization of original issue discount and the payment of interest or dividends in the form of  





 






  -91-  US-DOCS\122118934.6  additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same  class, and accretion or amortization of liquidation preference and increases in the amount of  Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies, will  each not be deemed to be an incurrence or issuance of Indebtedness, Disqualified Stock or  Preferred Stock, as the case may be, for purposes of this Section 4.09.  (e)  For purposes of determining compliance with any U.S. dollar-denominated  restriction on the incurrence of Indebtedness, the U.S. dollar equivalent principal amount of  Indebtedness denominated in a foreign currency shall be calculated based on the relevant  currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term  debt, or first committed or incurred, in the case of revolving credit debt (whichever yields the  lower U.S. dollar equivalent); provided that if such Indebtedness is incurred to refinance other  Indebtedness denominated in a foreign currency, and such refinancing would cause the  applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant  currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated  restriction shall be deemed not to have been exceeded so long as the principal amount of such  refinancing Indebtedness does not exceed (x) the principal amount of such Indebtedness being  refinanced plus (y) the aggregate amount of fees, underwriting discounts, premiums (including  tender premiums) and other costs and expenses (including original issue discount, upfront fees or  similar fees) incurred in connection with such refinancing.  (f)  The principal amount of any Indebtedness incurred to refinance other  Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be  calculated based on the currency exchange rate applicable to the currencies in which such  respective Indebtedness is denominated that is in effect on the date of such refinancing.    (g)  For the purposes of this Indenture, (1) Indebtedness that is unsecured is not  deemed to be subordinated or junior to Secured Indebtedness merely because it is unsecured, and  (2) Senior Indebtedness is not deemed to be subordinated or junior to any other Senior  Indebtedness merely because it has a junior priority with respect to the same collateral or does  not have obligors that guarantee or are otherwise liable on such other Senior Indebtedness.  SECTION 4.10. Asset Sales.  (a)  The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,  consummate, directly or indirectly, an Asset Sale, unless:  (1) the Issuer or such Restricted Subsidiary, as the case may be, receives  consideration at the time of such Asset Sale at least equal to the fair market value (as  determined in good faith by the Issuer at the time of contractually agreeing to such Asset  Sale) of the assets sold or otherwise disposed of; and  (2) except in the case of a Permitted Asset Swap, at least 75.0% of the  consideration for such Asset Sale, together with all other Asset Sales since the Issue Date  (on a cumulative basis), received by the Issuer or such Restricted Subsidiary, as the case  may be, is in the form of Cash Equivalents; provided that the amount of:  





 






  -92-  US-DOCS\122118934.6  (A)  any liabilities (as shown on the Issuer’s or such Restricted  Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred or  accrued subsequent to the date of such balance sheet, such liabilities that would  have been shown on the Issuer’s or such Restricted Subsidiary’s balance sheet or  in the footnotes thereto if such incurrence or increase had taken place on or prior  to the date of such balance sheet, as determined by the Issuer) of the Issuer or  such Restricted Subsidiary, other than liabilities that are by their terms  subordinated to the Notes, that are extinguished in connection with the  transactions relating to such Asset Sale, or that are assumed by the transferee (or  any third party on behalf of such transferee) of any such assets or Equity Interests,  in each case, pursuant to a written agreement that releases the Issuer or such  Restricted Subsidiary from such liabilities,  (B)  any securities, notes or other obligations or assets received by the  Issuer or such Restricted Subsidiary from such transferee that are converted by the  Issuer or such Restricted Subsidiary into Cash Equivalents, or by their terms are  required to be satisfied for Cash Equivalents (to the extent of the Cash  Equivalents received), in each case, within 180 days following the closing of such  Asset Sale, and  (C)  any Designated Non-cash Consideration received by the Issuer or  such Restricted Subsidiary in such Asset Sale having an aggregate fair market  value, taken together with all other Designated Non-cash Consideration received  pursuant to this clause (C), less the amount of any cash or Cash Equivalents  received in connection with a subsequent sale or conversion or collection in  respect of such Designated Non-cash Consideration, not to exceed the greater of  $100.0 million and 30.0% of EBITDA at the time of the receipt of such  Designated Non-cash Consideration, with the fair market value of each item of  Designated Non-cash Consideration being measured at the time received and  without giving effect to subsequent changes in value,  shall be deemed to be Cash Equivalents for purposes of this Section 4.10 and for no other  purpose.  (b)  Within 450 days after the receipt of the Net Cash Proceeds of any Asset Sale,  the Issuer or such Restricted Subsidiary, at its option, may apply the Net Cash Proceeds from  such Asset Sale,  (1)  to reduce Indebtedness as follows:  (A)  Obligations under Secured Indebtedness of the Issuer or any  Guarantor (and, if such Indebtedness is revolving credit Indebtedness, to  correspondingly and permanently reduce commitments with respect thereto);  (B)  Obligations under other Indebtedness of the Issuer or any Guarantor  that ranks equally in right of payment with the Notes or the relevant Guarantee  (and, if such Indebtedness is revolving credit Indebtedness, to correspondingly  





 






  -93-  US-DOCS\122118934.6  and permanently reduce commitments with respect thereto); provided that if the  Issuer or any Guarantor shall so reduce Obligations under such other  Indebtedness, the Issuer shall equally and ratably reduce Obligations under the  Notes by (i) redeeming the Notes as provided under Section 3.07 hereof, (ii)  purchasing the Notes through open-market purchases (to the extent such  purchases are at or above 100% of the principal amount thereof) or (iii) making an  offer (in accordance with Section 3.09 and Section 4.10(c) hereof) to all Holders  of Notes to purchase their Notes at 100% of the principal amount thereof, plus  accrued but unpaid interest, if any, on the amount of Notes that would otherwise  be prepaid; or  (C)  Indebtedness of a Restricted Subsidiary that is not a Guarantor;  (2) to make an Investment in (a) any one or more businesses; provided that such  Investment in any business is in the form of the acquisition of Capital Stock and results in  the Issuer or any of its Restricted Subsidiaries, as the case may be, owning an amount of  the Capital Stock of such business such that it constitutes or continues to constitute a  Restricted Subsidiary, (b) properties, (c) capital expenditures or (d) acquisitions of other  assets, in each of (a), (b), (c) and (d), used or useful in a Similar Business or that replace  the businesses, properties and/or assets that are the subject of such Asset Sale; or  (3) any combination of the foregoing;  provided that, in the case of clause (2) above, a binding commitment entered into within 450  days after the Asset Sale shall be treated as a permitted application of the Net Cash Proceeds  from the date of such commitment so long as the Issuer or such Restricted Subsidiary enters into  such commitment with the good faith expectation that such Net Cash Proceeds will be applied to  satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”)  and, in the event any Acceptable Commitment is later cancelled or terminated for any reason  before the Net Cash Proceeds are applied in connection therewith, the Issuer or such Restricted  Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within  180 days of such cancellation or termination; provided further that if any Second Commitment is  later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then  such Net Cash Proceeds shall constitute Excess Proceeds.  Notwithstanding the foregoing, to the extent that (i) any of or all the Net Cash  Proceeds of any Asset Sales by a Foreign Subsidiary (a “Foreign Disposition”) is prohibited or  delayed by applicable local law from being repatriated to the United States or (ii) the Issuer, in  its sole discretion, has reasonably determined in good faith that repatriation of any of or all of the  Net Cash Proceeds of any Foreign Disposition would result in material adverse tax  consequences, the portion of such Net Cash Proceeds so affected will not be required to be  applied in compliance with this Section 4.10; provided that within 180 days of the receipt of the  Net Cash Proceeds of any Foreign Disposition, the Issuer shall use commercially reasonable  efforts to permit repatriation of such proceeds that would otherwise be subject to this Section  4.10 without violating applicable local law or incurring material adverse tax consequences, and,  if such proceeds may be repatriated, within such 180 day period, such proceeds shall be applied  in compliance with this Section 4.10.  





 






  -94-  US-DOCS\122118934.6  (c)  Any Net Cash Proceeds from any Asset Sale that are not invested or applied  as provided and within the time period set forth in Section 4.10(b) hereof (it being understood  that any portion of such net proceeds used to make an offer to purchase notes, as described in  clause (1) of Section 4.10(b) hereof shall be deemed to have been invested whether or not such  offer is accepted) will be deemed to constitute “Excess Proceeds.” When the aggregate amount  of Excess Proceeds exceeds the greater of $100.0 million and 30.0% of EBITDA (the “Excess  Proceeds Threshold”), the Issuer shall make an offer (an “Asset Sale Offer”) to all Holders of the  Notes and, if required by the terms of any Indebtedness that is pari passu in right of payment  with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness, to  purchase the maximum aggregate principal amount of the Notes and such Pari Passu  Indebtedness, as the case may be, that, in the case of the Notes, is in an amount at least equal to  $2,000 and any integral multiple of $1,000 in excess thereof, that may be purchased out of the  Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount  thereof (or in the event such other Indebtedness was issued with original issue discount, 100% of  the accreted value thereof), plus accrued and unpaid interest, if any, to, but excluding, the date  fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture  and the agreements governing any such Pari Passu Indebtedness.  The Issuer will commence an  Asset Sale Offer with respect to Excess Proceeds within 10 Business Days after the date that  Excess Proceeds exceed the Excess Proceeds Threshold by delivering the notice required  pursuant to the terms of this Indenture, with a copy to the Trustee and Paying Agent.  The Issuer  may satisfy the foregoing obligations with respect to any Net Cash Proceeds from an Asset Sale  by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to the expiration of  the relevant 450 days (or such longer period provided above) or with respect to Excess Proceeds  of equal to or less than the Excess Proceeds Threshold.  To the extent that the aggregate amount of Notes and, if applicable, Pari Passu  Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the  Issuer may use any remaining Excess Proceeds for any purpose not otherwise prohibited under  this Indenture. If the aggregate principal amount of Notes and, if applicable, Pari Passu  Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the  Issuer shall select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis  based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness  tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be  purchased in part in an unauthorized denomination. Upon completion of any such Asset Sale  Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero  (regardless of whether there are any remaining Excess Proceeds upon such completion).  An Asset Sale Offer may be made at the same time as consents are solicited with  respect to an amendment, supplement or waiver of this Indenture, the Notes and/or the  Guarantees (but the Asset Sale Offer may not condition tenders on the delivery of such  consents).   (d)  Pending the final application of any Net Cash Proceeds pursuant to this  Section 4.10, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds  temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise  invest such Net Cash Proceeds in any manner not prohibited by this Indenture.  





 






  -95-  US-DOCS\122118934.6  (e)  The Issuer shall comply with the requirements of Rule 14e-1 under the  Exchange Act and any other securities laws and regulations thereunder to the extent such laws or  regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset  Sale Offer.  To the extent that the provisions of any securities laws or regulations conflict with  the provisions of this Indenture, the Issuer will comply with the applicable securities laws and  regulations and shall not be deemed to have breached its obligations described in this Indenture  by virtue thereof.  SECTION 4.11. Transactions with Affiliates.  (a)  The Issuer will not, and will  not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or  otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or  enter into or make or amend any transaction, contract, agreement, understanding, loan, advance  or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an  “Affiliate Transaction”) involving aggregate payments or consideration in excess of  $25.0 million, unless:  (1) such Affiliate Transaction is on terms that are not materially less favorable,  taken as a whole, as determined in good faith by the Issuer, to the Issuer or its relevant  Restricted Subsidiary than those that would have been obtained in a comparable  transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an  arm’s-length basis; and  (2) the Issuer delivers to the Trustee, with respect to any Affiliate Transaction or  series of related Affiliate Transactions involving aggregate payments or consideration in  excess of $50.0 million, a resolution adopted by the majority of the board of directors of  the Issuer approving such Affiliate Transaction and an Officer’s Certificate certifying that  such Affiliate Transaction complies with clause (1) of this Section 4.11(a).  (b)  The provisions of Section 4.11(a) will not apply to the following:  (1) transactions between or among the Issuer or any of its Restricted Subsidiaries;  (2) Restricted Payments permitted by Section 4.07 hereof (including any  payments that are exceptions to the definition of Restricted Payments set forth in clauses  (I) through (IV) of Section 4.07(a)) and Investments permitted by the definition of  “Permitted Investments”;  (3) the payment of reasonable and customary fees and compensation paid to, and  indemnities and reimbursements and employment and severance arrangements provided  on behalf of or for the benefit of, current or former officers, directors, employees,  members of management or consultants of the Issuer, any of its Restricted Subsidiaries or  any of its direct or indirect parent companies;  (4) transactions in which the Issuer or any of its Restricted Subsidiaries, as the  case may be, delivers to the Trustee a letter from an Independent Financial Advisor  stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a  financial point of view or stating that the terms are not materially less favorable, taken as  a whole, to the Issuer or its relevant Restricted Subsidiary than those that would have  





 






  -96-  US-DOCS\122118934.6  been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary  with an unrelated Person on an arm’s-length basis;  (5) any agreement or arrangement as in effect as of the Issue Date, and any  transaction pursuant thereto or contemplated thereby, or any amendment, modification or  supplement thereto or replacement thereof (so long as any such amendment,  modification, supplement or replacement is not disadvantageous to the Holders in any  material respect, taken as a whole, compared to the applicable agreement or arrangement  as in effect on the Issue Date as determined by the Issuer in good faith);  (6) (a) transactions with customers, clients, suppliers or purchasers or sellers of  goods or services that are Affiliates, in each case in the ordinary course of business and  otherwise in compliance with the terms of this Indenture which, taken as a whole, are fair  to the Issuer and its Restricted Subsidiaries, as determined by the Issuer in good faith, or  are on terms, taken as a whole, at least as favorable as might reasonably have been  obtained at such time from an unaffiliated party or (b) payments to or from, and  transactions with, any joint venture partner or joint venture or Unrestricted Subsidiaries  entered into in the ordinary course of business or consistent with past practice;  (7) the sale or issuance of Equity Interests (other than Disqualified Stock) of the  Issuer to any director, officer, employee or consultant of the Issuer or any of its  Restricted Subsidiaries;  (8) sales of accounts receivable, or participations therein, or Receivables Assets or  related assets or other transactions made in connection with any Qualified Receivables  Facility;  (9) (a) loans or advances or guarantees in respect thereof (or cancellation of loans,  advances or guarantees) to any future, present or former director, officer, employee,  member of management or consultant (or the estate, heirs, family members, spouse,  former spouse, domestic partner or former domestic partner of any of the foregoing) of  the Issuer or any of its Restricted Subsidiaries or otherwise made on behalf of the Issuer  or any of its Restricted Subsidiaries that are, in each case, approved by the Issuer in good  faith, and (b) payments to, and transactions with, any future, present or former director,  officer, employee, member of management or consultant of the Issuer, or any of its  Restricted Subsidiaries pursuant to any management equity plan or stock option plan or  any other management or employee benefit plan or agreement or any stock subscription  or shareholder agreement that is, in each case, approved by the Issuer in good faith; and  any employment agreement, stock option plan and other compensatory arrangement (and  any successor plan thereto) and any supplemental executive retirement benefit plan or  arrangement with any such director, officer, employee, member of management or  consultant that is, in each case, approved by the Issuer in good faith;   (10) if and for so long as the Issuer is a member of a group filing a consolidated,  unitary or combined tax return with any direct or indirect parent thereof, payments by the  Issuer and its Subsidiaries pursuant to tax sharing agreements among the Issuer and its  Subsidiaries on customary terms; provided that, in each case, the amount of such  





 






  -97-  US-DOCS\122118934.6  payments in each fiscal year does not exceed the amount that the Issuer and its  Subsidiaries would have been required to pay in respect of such foreign, federal, state  and/or local income taxes for such fiscal year had the Issuer and its Subsidiaries paid  such taxes on a consolidated basis on behalf of an affiliated group consisting only of the  Issuer and its Subsidiaries; provided further that any such payment relating to  Unrestricted Subsidiaries shall be permitted solely to the extent cash is actually received  from such Unrestricted Subsidiaries for the purposes of such payment;  (11) any transaction with an Affiliate that has been expressly approved by either a  majority of the Issuer’s independent directors or a duly created committee of the Issuer’s  Board of Directors consisting solely of independent directors  (12) any transaction with a Person that would constitute an Affiliate Transaction  solely because the Issuer or any of its Restricted Subsidiaries directly or indirectly owns  an Equity Interest in or otherwise controls such Person;  (13) any lease entered into in the ordinary course of business between the Issuer  or any Restricted Subsidiary, on the one hand, and any Affiliate of the Issuer, on the other  hand, which is approved by the Issuer in good faith;  (14) intellectual property licenses in the ordinary course of business;   (15) any contribution to the capital stock of the Issuer;  (16) transactions between the Issuer or any Restricted Subsidiary and any Person  that is an Affiliate of the Issuer or any Restricted Subsidiary solely because a director of  such Person, any of its Subsidiaries or any direct or indirect parent company of such  Person is also a director of the Issuer or any of its Subsidiaries; provided that such  director abstains from voting as a director of the Issuer or such Restricted Subsidiary, as  the case may be, on any such transaction;  (17) transactions with Affiliates solely in their capacity as holders of Indebtedness  or Equity Interests of the Issuer, or any of its Subsidiaries,  so long as such transaction is  with all holders of such class (and there are non-Affiliate holders) and such Affiliates are  treated no more favorably than all other holders of such Indebtedness or Equity Interests  generally; and  (18) pledges of Equity Interests of any Unrestricted Subsidiary.  SECTION 4.12. Liens.  The Issuer shall not, and shall not permit any Subsidiary  Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien (except  Permitted Liens) that secures obligations under any Indebtedness, on any asset or property of the  Issuer or any Subsidiary Guarantor, or any income or profits therefrom, or assign or convey any  right to receive income therefrom, unless:  (1) in the case of Liens securing Subordinated Indebtedness, the Notes and related  Guarantees are secured by a Lien on such property, assets or proceeds that is senior in  priority to such Liens; or  





 






  -98-  US-DOCS\122118934.6  (2) in all other cases, the Notes or the Guarantees are equally and ratably secured,  provided that the foregoing shall neither apply to nor restrict (A) Liens securing the Notes and  the related Guarantees, (B) Liens securing Indebtedness permitted to be incurred under Credit  Facilities, including any letter of credit facility relating thereto, that was permitted by the terms  of this Indenture to be incurred pursuant to clause (1) of Section 4.09(b) hereof and (C) Liens  securing Indebtedness permitted to be incurred pursuant to Section 4.09 hereof; provided that,  with respect to Liens securing Indebtedness permitted under this subclause (C), at the time of  incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio would  be no greater than 3.50 to 1.00.  Any Lien created for the benefit of the Holders of the Notes pursuant to the  preceding paragraph shall provide by its terms that such Lien shall be deemed automatically and  unconditionally released and discharged upon (a) the release by the holders of the Indebtedness  described above of their Lien on the property or assets of the Issuer or any Subsidiary Guarantor  (including any deemed release upon payment in full of all obligations under such Indebtedness  (except upon foreclosure or default of such Indebtedness)), (b) any sale, exchange or transfer to  any Person other than the Issuer or any Guarantor of the property or assets secured by such Lien,  or of all of the Capital Stock held by the Issuer or any Guarantor in, or all or substantially all the  assets of, any Subsidiary Guarantor creating such Lien, in each case, in accordance with the  terms of this Indenture, (c) payment in full of the principal of, and accrued and unpaid interest, if  any, on the Notes, or (d) a defeasance or discharge of the Notes in accordance with Article VIII  or Article XI hereof.  With respect to any Lien securing Indebtedness that was permitted to secure such  Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be  permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any  Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any  accrual of interest, the accretion of accreted value, amortization of original issue discount, the  payment of interest in the form of additional Indebtedness, accretion or amortization of original  issue discount of liquidation preference, and increases in the amount of Indebtedness outstanding  solely as a result of fluctuations in the exchange rate of currencies or increases in the value of  property securing Indebtedness.    For purposes of determining compliance with this Section 4.12, (x) a Lien need  not be incurred solely by reference to one category of Permitted Liens or one category of  permitted Liens described in the proviso to the first paragraph above but may be incurred under  any combination of such categories (including in part under one such category and in part under  any one or more of such other such categories) and (y) in the event that a Lien (or any portion  thereof) meets the criteria of one or more of such categories, the Issuer, in its sole discretion,  may divide and/or classify, or at any later time re-divide and/or reclassify, such Lien (or any  portion thereof) in any manner that complies with this Section 4.12 and the definition of  “Permitted Liens.”  SECTION 4.13. Company Existence.  Subject to Article V hereof, the Issuer shall  do or cause to be done all things necessary to preserve and keep in full force and effect its  company existence, and the corporate, partnership or other existence of each of its Restricted  





 






  -99-  US-DOCS\122118934.6  Subsidiaries, in accordance with the respective organizational documents (as the same may be  amended from time to time) of the Issuer or any such Restricted Subsidiary; provided that the  Issuer shall not be required to preserve the corporate, partnership or other existence of any of its  Restricted Subsidiaries, if the Issuer in good faith shall determine that the preservation thereof is  no longer desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries,  taken as a whole.  For the avoidance of doubt, the Issuer and its Restricted Subsidiaries will be  permitted to change their respective organizational forms.  SECTION 4.14. Offer to Repurchase Upon Change of Control.  (a) If a Change of  Control occurs, unless the Issuer has previously sent a redemption notice with respect to all the  outstanding Notes as described under Section 3.07 hereof, the Issuer shall make an offer to  purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”)  at a price in cash (the “Change of Control Payment”) equal to at least 101% of the aggregate  principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of  purchase, subject to the right of Holders of record on the relevant Record Date to receive interest  due on the relevant Interest Payment Date.  Within 30 days following any Change of Control,  except to the extent that the Issuer has exercised its right to redeem all the outstanding Notes  pursuant to Section 3.07 hereof, the Issuer shall send notice of such Change of Control Offer  electronically or by first-class mail, with a copy to the Trustee and Paying Agent, to each Holder  at the address of such Holder appearing in the Note Register or otherwise in accordance with the  Applicable Procedures with the following information:  (1) that a Change of Control Offer is being made pursuant to this Section 4.14 and  that all Notes properly tendered pursuant to such Change of Control Offer will be  accepted for payment by the Issuer;  (2) the purchase price and the purchase date, which will be no earlier than 30 days  nor later than 60 days from the date such notice is sent (the “Change of Control Payment  Date”), except in the case of a conditional Change of Control Offer made in advance of a  Change of Control in accordance with clause (c) of this Section 4.14;  (3) that any Note not properly tendered will remain outstanding and continue to  accrue interest;  (4) that, unless the Issuer defaults in the payment of the Change of Control  Payment, all Notes accepted for payment pursuant to the Change of Control Offer will  cease to accrue interest on the Change of Control Payment Date;  (5) that Holders electing to have any Notes purchased pursuant to a Change of  Control Offer will be required to surrender such Notes, with the form entitled “Option of  Holder to Elect Purchase” on the reverse of such Notes completed, to the paying agent  specified in the notice at the address specified in the notice prior to the close of business  on the fourth Business Day preceding the Change of Control Payment Date;  (6) that Holders will be entitled to withdraw their tendered Notes and their  election to require the Issuer to purchase such Notes; provided that the paying agent  receives, not later than the close of business on the fourth Business Day prior to the  





 






  -100-  US-DOCS\122118934.6  Change of Control Payment Date, an electronic transmission, facsimile transmission or  letter setting forth the name of the Holder of the Notes, the principal amount of Notes  tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes  and its election to have such Notes purchased;  (7) that Holders (other than Holders of a Global Note) whose Notes are being  purchased only in part will be issued new Notes and such new Notes will be equal in  principal amount to the unpurchased portion of the Notes surrendered.  The unpurchased  portion of any Note must be equal to at least $2,000 and any integral multiple of $1,000  in excess thereof;  (8) if such notice is sent prior to the occurrence of a Change of Control, a  statement that the Change of Control Offer is conditional on the occurrence of such  Change of Control and, if applicable, a statement that, in the Issuer’s discretion, the  Change of Control Payment Date may be delayed until such time as the Change of  Control shall have occurred, or that such purchase may not occur and such notice may be  rescinded in the event the Change of Control shall not have occurred by the Change of  Control Payment Date, or by the Change of Control Payment Date as so delayed; and  (9) the other instructions, as determined by the Issuer, consistent with this Section  4.14 described hereunder, that a Holder must follow.  The notice, if delivered electronically, mailed or caused to be mailed in a manner  herein provided, shall be conclusively presumed to have been given, whether or not the Holder  receives such notice.  In any case, failure to give such notice as provided herein or any defect in  the notice to the Holder of any Note designated for purchase shall not affect the validity of the  proceedings for the purchase of any other Note.    The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange  Act and any other securities laws and regulations thereunder to the extent such laws or  regulations are applicable in connection with the repurchase of Notes pursuant to a Change of  Control Offer.  To the extent that the provisions of any securities laws or regulations conflict  with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws  and regulations and shall not be deemed to have breached its obligations under this Indenture by  virtue thereof.  (b)  On the Change of Control Payment Date, the Issuer shall, to the extent  permitted by law,  (1) accept for payment all Notes issued by it or portions thereof properly tendered  pursuant to the Change of Control Offer,  (2) deposit with the Paying Agent an amount equal to the aggregate Change of  Control Payment in respect of all Notes or portions thereof so tendered, and  (3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so  accepted together with an Officer’s Certificate to the Trustee stating that such Notes or  portions thereof have been tendered to and purchased by the Issuer.  





 






  -101-  US-DOCS\122118934.6  (c)  The Issuer shall not be required to make a Change of Control Offer following  a Change of Control if a third party makes the Change of Control Offer in the manner, at the  times and otherwise in compliance with the requirements set forth in this Indenture applicable to  a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not  withdrawn under such Change of Control Offer.  Additionally, the Issuer will not be required to  make a Change of Control Offer if the Issuer has previously issued a notice of redemption for all  of the Notes pursuant to Section 3.07 hereof unless and until there is a default in the payment of  the redemption price on the applicable Redemption Date or the redemption is not consummated  due to the failure of a condition precedent contained in the applicable redemption notice to be  satisfied.  Notwithstanding anything to the contrary herein, a Change of Control Offer may be  made in advance of a Change of Control, conditional upon such Change of Control, if a  definitive agreement is in place for the Change of Control at the time of making of the Change of  Control Offer. The Change of Control Payment Date may be extended automatically until such  Change of Control occurs.  (d)  A Change of Control Offer may be made at the same time as consents are  solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes,  and/or the Guarantees (but the Change of Control Offer may not condition tenders on the  delivery of such consents).   (e)  Other than as specifically provided in this Section 4.14, any purchase  pursuant to this Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and  3.06 hereof, and references therein to “redeem,” “redemption” and similar words shall be  deemed to refer to “purchase,” “repurchase” and similar words, as applicable.  SECTION 4.15. Limitation on Guarantees of Indebtedness by Restricted  Subsidiaries.  The Issuer shall not permit any Restricted Subsidiary that is a Domestic  Subsidiary, other than a Guarantor, to guarantee the payment of any Indebtedness (or any interest  on such Indebtedness) under the Senior Credit Facility unless:  (1) such Restricted Subsidiary within 45 days of such guarantee executes and  delivers a supplemental indenture to this Indenture, the form of which is attached as  Exhibit D hereto, providing for a Guarantee by such Restricted Subsidiary, except that  with respect to a guarantee of Indebtedness of the Issuer or any Guarantor, if such  Indebtedness is by its express terms subordinated in right of payment to the Notes or such  Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to  such Indebtedness shall be subordinated in right of payment to such Guarantee  substantially to the same extent as such Indebtedness is subordinated to the Notes; and  (2) such Restricted Subsidiary waives and shall not in any manner whatsoever  claim or take the benefit or advantage of, any right of reimbursement, indemnity or  subrogation or any other right against the Issuer or any other Restricted Subsidiary as a  result of any payment by such Restricted Subsidiary under its Guarantee or otherwise.  The Issuer may elect, in its sole discretion, to cause any Subsidiary that is not  otherwise required to be a Guarantor to become a Guarantor, in which case such Subsidiary shall  not be required to comply with the 45-day period described above.   





 






  -102-  US-DOCS\122118934.6  SECTION 4.16. Suspension of Covenants.  (a)  If on any date following the Issue Date (i) the Notes have an Investment  Grade Rating from either of the Rating Agencies and (ii) no Default has occurred and is  continuing under this Indenture (the occurrence of the events described in the foregoing  clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”), then,  beginning on that day (the “Suspension Date”) and continuing until the Reversion Date,  Section 4.07 hereof, Section 4.08 hereof, Section 4.09 hereof, Section 4.10 hereof, Section 4.11  hereof, Section 4.15 hereof and clause (4) of Section 5.01(a) hereof shall not be applicable to the  Notes (collectively, the “Suspended Covenants”).  (b)  During any period that the Suspended Covenants have been suspended, the  Issuer may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the  second sentence of the definition of “Unrestricted Subsidiary.”  (c)  In the event that the Issuer and its Restricted Subsidiaries are not subject to  the Suspended Covenants under this Indenture for any period as a result of the foregoing, and on  any subsequent date (the “Reversion Date”) the Notes do not carry an Investment Grade Rating  from either of the Rating Agencies, then the Issuer and its Restricted Subsidiaries will thereafter  again be subject to the Suspended Covenants under this Indenture with respect to events  occurring on or after the Reversion Date unless and until there shall be a new Suspension Date.   The period between a Suspension Date and a Reversion Date is referred to in this Section 4.16 as  a “Suspension Period.” The Guarantees of the Guarantors will be released during the Suspension  Period. Additionally, upon the occurrence of a Covenant Suspension Event, the amount of  Excess Proceeds from Net Cash Proceeds shall be reset to zero.   (d)  During any Suspension Period, the Issuer and its Restricted Subsidiaries will  be entitled to incur Liens to the extent provided for in Section 4.12 hereof (including Permitted  Liens) and any Permitted Liens that refer to one or more Suspended Covenants shall be  interpreted as though such applicable Suspended Covenant(s) continued to be applicable during  the Suspension Period (but solely for Section 4.12 hereof).  Notwithstanding the foregoing, in the event of any reinstatement of the Suspended  Covenants, no action taken or omitted to be taken by the Issuer or any of its Restricted  Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default under this  Indenture with respect to the Notes; provided that (1) with respect to Restricted Payments made  after such reinstatement, the amount of Restricted Payments made will be calculated as though  Section 4.07 had been in effect prior to, but not during, the Suspension Period; (2) all  Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension  Period will be classified to have been incurred or issued pursuant to Section 4.09(b)(3); (3) all  Liens incurred during the Suspension Period will be classified to have been incurred under clause  (7) of the definition of “Permitted Liens”; (4) any Affiliate Transaction entered into after such  reinstatement pursuant to all agreements and arrangements entered into during any Suspension  Period shall be deemed to be permitted pursuant to Section 4.11(b)(5) hereof; (5) any  encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to  take any action described in clauses (1) through (3) of Section 4.08(a) hereof that becomes  effective during any Suspension Period shall be deemed to be permitted pursuant to Section  





 






  -103-  US-DOCS\122118934.6  4.08(b)(1) hereof; and (6) no Subsidiary of the Issuer shall be required to comply with Section  4.15 hereof after such reinstatement with respect to any guarantee entered into by such  Subsidiary during any Suspension Period.   In addition, for purposes of clause (3) of Section 4.07(a) hereof, all Restricted  Payments made pursuant to clause (3) occurring during a Suspension Period shall be disregarded  for purposes of determining the amount of Restricted Payments the Issuer or any Restricted  Subsidiary is permitted to make pursuant to such clause (3).  On and after each Reversion Date, the Issuer and its Subsidiaries will be permitted  to consummate the transactions contemplated by any contract entered into during the Suspension  Period, so long as such contract and such consummation would have been permitted during such  Suspension Period.  (e)  The Issuer shall notify the Trustee of the occurrence of any Covenant  Suspension Event and of any Reversion Date; provided that no such notification, in the case of  any Covenant Suspension Event, shall be a condition for the suspension of the Suspended  Covenants to be effective; provided further that the Trustee shall be under no obligation to  inform Holders of the occurrence of any Covenant Suspension Event.  ARTICLE V  SUCCESSORS  SECTION 5.01. Merger, Consolidation or Sale of All or Substantially All Assets.  (a)  The Issuer may not consolidate or merge with or into or wind up into  (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or  otherwise dispose of all or substantially all of its properties or assets, in one or more related  transactions, to any Person unless:  (1) the Issuer is the surviving Person or the Person formed by or surviving any  such consolidation, merger or wind-up (if other than the Issuer) or to which such sale,  assignment, transfer, lease, conveyance or other disposition will have been made is a  Person organized or existing under the laws of the jurisdiction of organization of the  Issuer or the laws of the United States, any state thereof, the District of Columbia, or any  territory thereof (such Person, as the case may be, being herein called the “Successor  Company”);  (2) the Successor Company, if other than the Issuer, expressly assumes all the  obligations of the Issuer under this Indenture and the Notes pursuant to supplemental  indentures or other documents or instruments;  (3) immediately after such transaction, no Default or Event of Default exists;  





 






  -104-  US-DOCS\122118934.6  (4) immediately after giving pro forma effect to such transaction and any related  financing or debt reduction transactions, as if such transactions had occurred at the  beginning of the applicable four-quarter period,  (A)  the Successor Company would be permitted to incur at least $1.00 of  additional Indebtedness pursuant to the Fixed Charge Coverage Test set forth in  Section 4.09(a) hereof, or  (B)  the Fixed Charge Coverage Ratio for the Successor Company and the  Restricted Subsidiaries would be equal to or greater than the Fixed Charge  Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to  such transaction;  (5) each Subsidiary Guarantor, unless it is the other party to the transactions  described above, in which case Section 5.01(c)(1)(B) hereof shall apply, shall have by  supplemental indenture confirmed that its Guarantee shall apply to such Person’s  obligations under this Indenture and the Notes; and  (6) the Successor Company shall have delivered to the Trustee an Officer’s  Certificate and an Opinion of Counsel, each stating that such consolidation, merger, wind  up, sale, assignment, transfer, lease, conveyance or other disposition and such  supplemental indentures, if any, comply with this Indenture.  (b)  The Successor Company, if not the Issuer, will succeed to, and be substituted  for, the Issuer under this Indenture and the Notes and in such event the Issuer will automatically  be released and discharged from its obligations under this Indenture and the Notes.    Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,  (1) any Restricted Subsidiary may consolidate or merge with or into or wind up  into or transfer all or part of its properties and assets to the Issuer or any Subsidiary  Guarantor, and  (2) the Issuer may merge with an Affiliate of the Issuer solely for the purpose of  reorganizing the Issuer in another state of the United States, the District of Columbia or  any territory thereof so long as the amount of Indebtedness of the Issuer and its Restricted  Subsidiaries is not materially increased thereby.  (c)  Subject to Section 10.06 hereof, no Subsidiary Guarantor will, and the Issuer  will not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into  (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign, transfer,  lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or  more related transactions, to any Person unless:  (1) (A)  such Subsidiary Guarantor is the surviving Person or the Person formed  by or surviving any such consolidation, merger or wind-up (if other than such Subsidiary  Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other  disposition will have been made is a Person organized or existing under the laws of the  





 






  -105-  US-DOCS\122118934.6  jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States,  any state thereof, the District of Columbia, or any territory thereof (such Person being  herein called the “Successor Person”);  (B)  the Successor Person, if other than such Subsidiary Guarantor,  expressly assumes all the obligations of such Subsidiary Guarantor under this  Indenture and such Subsidiary Guarantor’s related Guarantee pursuant to  supplemental indentures or other documents or instruments;  (C)  immediately after such transaction, no Default or Event of Default  exists; and  (D)  the Issuer shall have delivered to the Trustee an Officer’s Certificate  stating that such consolidation, merger, wind up, sale, assignment, transfer, lease,  conveyance or other disposition and such supplemental indentures, if any, comply  with this Indenture; or  (2) the transaction is made in compliance with Section 4.10 hereof.  (d)  Subject to Section 10.06 hereof, the Successor Person will succeed to, and be  substituted for, such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s  Guarantee and in such event such Subsidiary Guarantor will automatically be released and  discharged from its obligations under this Indenture and its Guarantee.  Notwithstanding the  foregoing, any Subsidiary Guarantor may (1) consolidate or merge with or into or wind up into  or transfer all or part of its properties and assets to the Issuer or any Subsidiary Guarantor, (2)  merge with an Affiliate of the Issuer solely for the purpose of reorganizing such Subsidiary  Guarantor in another jurisdiction so long as the amount of Indebtedness of the Issuer and its  Restricted Subsidiaries is not increased thereby and so long as the surviving entity (if not the  Subsidiary Guarantor) assumes all of the Subsidiary Guarantor’s obligations under its Guarantee  in connection with such reorganization, (3) convert into a corporation, partnership, limited  partnership, limited liability company or trust organized or existing under the laws of the  jurisdiction of organization of such Subsidiary Guarantor or (4) liquidate or dissolve or change  its legal form if the Issuer determines in good faith that such action is in the best interests of the  Issuer and is not materially disadvantageous to the Holders, in each case, without regard to the  requirements set forth in Section 5.01(c) hereof.  (e)  Notwithstanding anything herein to the contrary, this Section 5.01 shall not  apply to any consolidation, merger or winding up or any sale, assignment, transfer, conveyance,  lease or other disposition of assets between or among the Issuer and its Restricted Subsidiaries.  SECTION 5.02. Successor Person Substituted.  Upon any consolidation or  merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or  substantially all of the assets of the Issuer or a Subsidiary Guarantor in accordance with  Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the  Issuer or such Subsidiary Guarantor, as applicable, is merged or to which such sale, assignment,  transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for  (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other  





 






  -106-  US-DOCS\122118934.6  disposition, the provisions of this Indenture referring to the Issuer or such Subsidiary Guarantor,  as applicable, shall refer instead to the successor Person and not to the Issuer or such Subsidiary  Guarantor, as applicable), and may exercise every right and power of the Issuer or such  Subsidiary Guarantor, as applicable, under this Indenture with the same effect as if such  successor Person had been named as the Issuer or a Guarantor, as applicable, herein; provided  that the predecessor Issuer shall not be relieved from the obligation to pay the principal of,  premium, if any, and interest on the Notes except in the case of a sale, assignment, transfer,  conveyance or other disposition of all of the Issuer’s assets that meets the requirements of  Section 5.01 hereof.  ARTICLE VI  DEFAULTS AND REMEDIES  SECTION 6.01. Events of Default.    An “Event of Default” means any one of the following events:  (1) default in payment when due and payable, upon redemption, acceleration or  otherwise, of principal of, or premium, if any, on the Notes;  (2) default for 30 days or more in the payment when due of interest on or with  respect to the Notes;  (3) failure by the Issuer or any Guarantor for 60 days after receipt of written  notice of such failure given by the Trustee or the Holders of not less than 30% in  principal amount of the Notes then outstanding, in the case of notice from the Holders,  with a copy to the Trustee, to comply with any of its obligations, covenants or  agreements contained in this Indenture or the Notes (other than a default referred to in  clauses (1) and (2) above);  (4) default under any mortgage, indenture or instrument under which there is  issued or by which there is secured or evidenced any Indebtedness for money borrowed  by the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that,  taken together, would constitute a Significant Subsidiary) or the payment of which is  guaranteed by the Issuer or any Significant Subsidiary (or any group of Restricted  Subsidiaries that, taken together, would constitute a Significant Subsidiary), other than  Indebtedness owed to the Issuer or a Restricted Subsidiary, whether such Indebtedness or  guarantee now exists or is created after the issuance of the Notes, if both:  (A)  such default either results from the failure to pay any principal of  such Indebtedness at its stated final maturity (after giving effect to any applicable  grace periods) or relates to an obligation other than the obligation to pay principal  of any such Indebtedness at its stated final maturity and results in the holder or  holders of such Indebtedness causing such Indebtedness to become due prior to its  stated maturity; and  (B)  the principal amount of such Indebtedness, together with the principal  amount of any other such Indebtedness in default for failure to pay principal at  





 






  -107-  US-DOCS\122118934.6  stated final maturity (after giving effect to any applicable grace periods), or the  maturity of which has been so accelerated, aggregate $100.0 million or more at  any time outstanding;  (5) failure by the Issuer or any Significant Subsidiary (or any group of Restricted  Subsidiaries that taken together would constitute a Significant Subsidiary) to pay final  judgments aggregating in excess of $100.0 million (net of any amounts which are  covered by insurance), which final judgments remain unpaid, undischarged and unstayed  for a period of more than 60 days after such judgment becomes final, and in the event  such judgment is covered by insurance, an enforcement proceeding has been commenced  by any creditor upon such judgment or decree which is not promptly stayed;  (6) the Issuer or any Significant Subsidiary (or any group of Restricted  Subsidiaries that taken together would constitute a Significant Subsidiary), pursuant to or  within the meaning of any Bankruptcy Law:  (i) commences proceedings to be adjudicated bankrupt or insolvent;  (ii) consents to the institution of bankruptcy or insolvency proceedings  against it, or the filing by it of a petition or answer or consent seeking  reorganization or relief under applicable Bankruptcy Law;  (iii) consents to the appointment of a receiver, liquidator, assignee, trustee,  sequestrator or other similar official of it or for all or substantially all of its  property;  (iv) makes a general assignment for the benefit of its creditors; or  (v) generally is not paying its debts as they become due;  (7) a court of competent jurisdiction enters an order or decree under any  Bankruptcy Law:  (i) for relief against the Issuer or any Significant Subsidiary (or any group  of Restricted Subsidiaries that, taken together, would constitute a Significant  Subsidiary) in an involuntary case;  (ii) that appoints a receiver, liquidator, assignee, trustee, sequestrator or  other similar official of the Issuer or any Significant Subsidiary (or any group of  Restricted Subsidiaries that, taken together, would constitute a Significant  Subsidiary), or for all or substantially all of the property of the Issuer or any  Significant Subsidiary (or any group of Restricted Subsidiaries that, taken  together, would constitute a Significant Subsidiary); or  (iii) that orders the liquidation of the Issuer or any Significant Subsidiary  (or any group of Restricted Subsidiaries that, taken together, would constitute a  Significant Subsidiary);   





 






  -108-  US-DOCS\122118934.6  and the order or decree remains unstayed and in effect for 60 consecutive days; or  (8) the Guarantee of any Significant Subsidiary shall for any reason cease to be in  full force and effect or be declared null and void or any responsible officer of any  Guarantor that is a Significant Subsidiary, as the case may be, denies that it has any  further liability under its Guarantee or gives notice to such effect, other than by reason of  the termination of this Indenture or the release of any such Guarantee in accordance with  this Indenture.  SECTION 6.02. Acceleration.  If any Event of Default (other than an Event of  Default specified in clause (6) of Section 6.01 hereof with respect to the Issuer) occurs and is  continuing under this Indenture, the Trustee may, by notice to the Issuer, or the Holders of at  least 30% in principal amount of the then-outstanding Notes may, by notice to the Issuer and the  Trustee, in each case, declare the principal, premium, if any, interest and any other monetary  obligations on all the then-outstanding Notes to be due and payable immediately; provided that  no such declaration of acceleration may occur with respect to any action taken, and reported  publicly or to Holders, more than two years prior to the date of such declaration. The Trustee  shall have no obligation to determine when or if any Holders have been notified of any such  action or to track when such two-year period starts or concludes. Any time period to cure any  actual or alleged Default or Event of Default may be extended or stayed by a court of competent  jurisdiction.  Any notice of Default, notice of acceleration or instruction to the Trustee to  provide a notice of Default, notice of acceleration or take any other action (a “Noteholder  Direction”) provided by any one or more Holders (each a “Directing Holder”), in order to be  valid, must be accompanied by a written representation from each such Holder delivered to the  Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee,  that such Holder is being instructed solely by beneficial owners that have represented to such  Holder that they are not) Net Short (a “Position Representation”), which representation, in the  case of a Noteholder Direction relating to the delivery of a notice of Default, shall be deemed a  continuing representation until the resulting Event of Default is cured or otherwise ceases to exist  or the notes are accelerated. In addition, each Directing Holder is deemed, at the time of  providing a Noteholder Direction, to covenant to provide the Issuer with such other information  as the Issuer may reasonably request from time to time in order to verify the accuracy of such  Noteholder’s Position Representation within five Business Days of request therefor (a  “Verification Covenant”). In any case in which the Holder is DTC or its nominee, any Position  Representation or Verification Covenant required hereunder shall be provided by the beneficial  owner of the notes in lieu of DTC or its nominee, and DTC shall be entitled to conclusively rely  on such Position Representation and Verification Covenant in delivering its direction to the  Trustee.  If, following the delivery of a Noteholder Direction, but prior to acceleration of  the notes, the Issuer determines in good faith that there is a reasonable basis to believe a  Directing Holder was, at any relevant time, in breach of its Position Representation and provides  to the Trustee an Officer’s Certificate stating that the Issuer has filed papers with a court of  competent jurisdiction seeking a determination that such Directing Holder was, at such time, in  breach of its Position Representation, and seeking to invalidate any Event of Default that resulted  





 






  -109-  US-DOCS\122118934.6  from the applicable Noteholder Direction, the cure period with respect to such Event of Default  shall be automatically stayed pending a final and non-appealable determination of a court of  competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but  prior to acceleration of the notes, the Issuer provides to the Trustee an Officer’s Certificate  stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with  respect to such Event of Default that resulted from the applicable Noteholder Direction shall be  automatically stayed pending satisfaction of such Verification Covenant. Any breach of the  Position Representation shall result in such Holder’s participation in such Noteholder Direction  being disregarded; and, if, without the participation of such Holder, the percentage of notes held  by the remaining Holders that provided such Noteholder Direction would have been insufficient  to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio  (other than any indemnity such Directing Holder may have offered the Trustee), with the effect  that such Event of Default shall be deemed never to have occurred, acceleration voided and the  Trustee shall be deemed not to have received such Noteholder Direction or any notice of such  Default or Event of Default.  Notwithstanding anything in the preceding two paragraphs to the contrary, any  Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the  result of a bankruptcy or similar proceeding shall not require compliance with the foregoing  paragraphs. For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any  Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to  inquire as to or investigate the accuracy of any Position Representation, enforce compliance with  any Verification Covenant, verify any statements in any Officer’s Certificate delivered to it, or  otherwise make calculations, investigations or determinations with respect to Derivative  Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or  otherwise. The Trustee shall have no liability to the Issuer, any Holder or any other Person in  acting in good faith on a Noteholder Direction.  Upon the effectiveness of such declaration of acceleration, such principal and  interest shall be due and payable immediately. Notwithstanding the foregoing, in the case of an  Event of Default arising with respect to the Issuer under clause (6) of Section 6.01 hereof, all  outstanding Notes shall be due and payable without further action or notice.  In the event of any Event of Default specified in clause (4) of Section 6.01 hereof,  such Event of Default and all consequences thereof (excluding any resulting payment default,  other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded,  automatically and without any action by the Trustee or the Holders, if within 20 days after such  Event of Default arose:  (1) the Indebtedness or guarantee that is the basis for such Event of Default has  been discharged;   (2) the holders thereof have rescinded or waived the acceleration, notice or action  (as the case may be) giving rise to such Event of Default; or  (3) the default that is the basis for such Event of Default has been cured.  





 






  -110-  US-DOCS\122118934.6  SECTION 6.03. Other Remedies.  If an Event of Default occurs and is continuing,  the Trustee may pursue any available remedy to collect the payment of principal, premium, if  any, and interest on the Notes or to enforce the performance of any provision of the Notes or this  Indenture.  The Trustee may maintain a proceeding even if it does not possess any of the  Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or  any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair  the right or remedy or constitute a waiver of or acquiescence in the Event of Default.    SECTION 6.04. Waiver of Past Defaults.  Holders of a majority in aggregate  principal amount of the then-outstanding Notes by notice to the Trustee (with a copy to the  Issuer; provided that any waiver or rescission under this Section 6.04 shall be valid and binding  notwithstanding the failure to provide a copy of such notice to the Issuer) may on behalf of the  Holders of all of the Notes waive any existing Default or Event of Default and its consequences  under this Indenture (except a continuing Default in the payment of the principal of, premium, if  any, or interest on, any Note held by a non-consenting Holder) (including in connection with an  Asset Sale Offer or Change of Control Offer) and rescind any acceleration with respect to the  Notes and its consequences (except if such rescission would conflict with any judgment of a  court of competent jurisdiction).  Upon any such waiver, such Default shall cease to exist, and  any Event of Default arising therefrom shall be deemed to have been cured for every purpose of  this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any  right consequent thereto.   SECTION 6.05. Control by Majority.  Holders of a majority in principal amount  of the then-outstanding Notes may direct the time, method and place of conducting any  proceeding for any remedy available to the Trustee or of exercising any trust or power conferred  on the Trustee.  The Trustee, however, may refuse to follow any direction that conflicts with law  or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other  Holder or that would involve the Trustee in personal liability.  SECTION 6.06. Limitation on Suits.  Subject to Section 6.07 hereof, no Holder  may pursue any remedy with respect to this Indenture or the Notes unless:  (1) such Holder has previously given the Trustee notice that an Event of Default  is continuing;  (2) Holders of at least 30% in principal amount of the then-outstanding Notes  have requested the Trustee to pursue the remedy;  (3) such Holder has offered the Trustee indemnity, security and/or prefunding  against any loss, liability or expense;  (4) the Trustee has not complied with such request within 60 days after the receipt  thereof and the offer of security or indemnity; and  





 






  -111-  US-DOCS\122118934.6  (5) Holders of a majority in principal amount of the then-outstanding Notes have  not given the Trustee a direction inconsistent with such request within such 60-day  period.  A Holder may not use this Indenture to prejudice the rights of another Holder or  to obtain a preference or priority over another Holder (it being understood that the Trustee does  not have an affirmative duty to ascertain whether or not any actions are unduly prejudicial to  such Holders).  SECTION 6.07. Rights of Holders of Notes to Receive Payment.   Notwithstanding any other provision of this Indenture, the right of any Holder to receive  payment of principal of, premium, if any, and interest on the Note, on or after the respective due  dates expressed or provided for in the Note (including in connection with an Asset Sale Offer or  a Change of Control Offer), or to bring suit for the enforcement of any such payment on or after  such respective dates, shall not be impaired or affected without the consent of such Holder.  SECTION 6.08. Collection Suit by Trustee.  If an Event of Default specified in  Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover  judgment in its own name and as trustee of an express trust against the Issuer for the whole  amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest  on overdue principal and, to the extent lawful, interest and such further amount as shall be  sufficient to cover the costs and expenses of collection, including the reasonable compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel.  SECTION 6.09. Restoration of Rights and Remedies.  If the Trustee or any  Holder has instituted any proceeding to enforce any right or remedy under this Indenture and  such proceeding has been discontinued or abandoned for any reason, or has been determined  adversely to the Trustee or to such Holder, then and in every such case, subject to any  determination in such proceedings, the Issuer, the Trustee and the Holders shall be restored  severally and respectively to their former positions hereunder and thereafter all rights and  remedies of the Trustee and the Holders shall continue as though no such proceeding has been  instituted.  SECTION 6.10. Rights and Remedies Cumulative.  Except as otherwise provided  with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in  Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the  Holders is intended to be exclusive of any other right or remedy, and every right and remedy  shall, to the extent permitted by law, be cumulative and in addition to every other right and  remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The  assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the  concurrent assertion or employment of any other appropriate right or remedy.  SECTION 6.11. Delay or Omission Not Waiver.  No delay or omission of the  Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default  shall impair any such right or remedy or constitute a waiver of any such Event of Default or an  acquiescence therein.  Every right and remedy given by this Article VI or by law to the Trustee  





 






  -112-  US-DOCS\122118934.6  or to the Holders may be exercised from time to time, and as often as may be deemed expedient,  by the Trustee or by the Holders, as the case may be.  SECTION 6.12. Trustee May File Proofs of Claim.  The Trustee is authorized to  file such proofs of claim and other papers or documents as may be necessary or advisable in  order to have the claims of the Trustee (including any claim for the reasonable compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders  allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes  including the Guarantors), its creditors or its property and shall be entitled and empowered to  participate as a member in any official committee of creditors appointed in such matter and to  collect, receive and distribute any money or other property payable or deliverable on any such  claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to  make such payments to the Trustee, and in the event that the Trustee shall consent to the making  of such payments directly to the Holders, to pay to the Trustee any amount due to it for the  reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and  counsel, and any other amounts due the Trustee under Section 7.07 hereof.  To the extent that the  payment of any such compensation, expenses, disbursements and advances of the Trustee, its  agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the  estate in any such proceeding, shall be denied for any reason, payment of the same shall be  secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money,  securities and other properties that the Holders may be entitled to receive in such proceeding  whether in liquidation or under any plan of reorganization or arrangement or otherwise.  Nothing  herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or  adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or  composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in  respect of the claim of any Holder in any such proceeding.  SECTION 6.13. Priorities.  If the Trustee or any Agent collects any money  pursuant to this Article VI, it shall pay out the money in the following order:   (i)  to the Trustee, each Agent, their agents and attorneys for amounts due under  Section 7.07 hereof, including payment of all compensation, expenses and liabilities  incurred, and all advances made, by the Trustee or any Agent and the costs and expenses  of collection;  (ii)  to Holders of Notes for amounts due and unpaid on the Notes for principal,  premium, if any, and interest, ratably, without preference or priority of any kind,  according to the amounts due and payable on the Notes for principal, premium, if any,  and interest, respectively; and  (iii)  to the Issuer or to such party as a court of competent jurisdiction shall direct  including a Guarantor, if applicable.  The Trustee may fix a record date and payment date for any payment to Holders of Notes  pursuant to this Section 6.13.  





 






  -113-  US-DOCS\122118934.6  SECTION 6.14. Undertaking for Costs.  In any suit for the enforcement of any  right or remedy under this Indenture or in any suit against the Trustee for any action taken or  omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in  the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess  reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit,  having due regard to the merits and good faith of the claims or defenses made by the party  litigant.  This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to  Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then- outstanding Notes.  ARTICLE VII  TRUSTEE  SECTION 7.01. Duties of Trustee  (a)  If an Event of Default has occurred and is continuing, the Trustee shall  exercise such of the rights and powers vested in it by this Indenture, and use the same degree of  care and skill in its exercise, as a prudent person would exercise or use under the circumstances  in the conduct of such person’s own affairs.  (b)  Except during the continuance of an Event of Default:  (i)  the duties of the Trustee shall be determined solely by the express provisions  of this Indenture and the Trustee need perform only those duties that are specifically set  forth in this Indenture and no others, and no implied covenants or obligations shall be  read into this Indenture against the Trustee; and  (ii)  in the absence of bad faith on its part, the Trustee may conclusively rely, as to  the truth of the statements and the correctness of the opinions expressed therein, upon  certificates or opinions furnished to the Trustee and conforming to the requirements of  this Indenture.  However, in the case of any such certificates or opinions which by any  provision hereof are specifically required to be furnished to the Trustee, the Trustee shall  examine the certificates and opinions to determine whether or not they conform to the  requirements of this Indenture (but need not confirm or investigate the accuracy of  mathematical calculations or other facts stated therein).  (c)  The Trustee may not be relieved from liabilities for its own negligent action,  its own negligent failure to act, or its own willful misconduct, except that:  (i)  this paragraph does not limit the effect of paragraph (b) of this Section 7.01;  (ii)  the Trustee shall not be liable for any error of judgment made in good faith by  a Responsible Officer, unless it is proved in a court of competent jurisdiction that the  Trustee was negligent in ascertaining the pertinent facts; and  (iii)  the Trustee shall not be liable with respect to any action it takes or omits to  take in good faith in accordance with a direction received by it pursuant to Article VI  hereof.  





 






  -114-  US-DOCS\122118934.6  (d)  Whether or not therein expressly so provided, every provision of this  Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this  Section 7.01.  (e)  The Trustee shall be under no obligation to exercise any of its rights or  powers under this Indenture at the request or direction of any of the Holders of the Notes unless  the Holders have offered to the Trustee reasonable indemnity or security against any loss,  liability or expense.  (f)  The Trustee shall not be liable for interest on any money received by it except  as the Trustee may agree in writing with the Issuer and may hold such money uninvested.   Money held in trust by the Trustee need not be segregated from other funds except to the extent  required by law.  SECTION 7.02. Rights of Trustee.  (a)  The Trustee may conclusively rely upon any document believed by it to be  genuine and to have been signed or presented by the proper Person.  The Trustee need not  investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make  such further inquiry or investigation into such facts or matters as it may see fit, and, if the  Trustee shall determine to make such further inquiry or investigation, it shall be entitled to  examine the books, records and premises of the Issuer and its Restricted Subsidiaries, personally  or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional  liability of any kind by reason of such inquiry or investigation.  (b)  Before the Trustee acts or refrains from acting, it may require an Officer’s  Certificate of the Issuer or an Opinion of Counsel or both.  The Trustee shall not be liable for any  action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion  of Counsel.  The Trustee may consult with counsel of its selection and the advice of such counsel  or any Opinion of Counsel shall be full and complete authorization and protection from liability  in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance  thereon.  (c)  The Trustee may act through its attorneys and agents and shall not be  responsible for the misconduct or negligence of any agent or attorney appointed with due care.  (d)  The Trustee shall not be liable for any action it takes or omits to take in good  faith that it believes to be authorized or within the rights or powers conferred upon it by this  Indenture.  (e)  Unless otherwise specifically provided in this Indenture, any demand, request,  direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.  (f)  None of the provisions of this Indenture shall require the Trustee to expend or  risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance  of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have  grounds for believing that repayment of such funds or indemnity satisfactory to it against such  risk or liability is not assured to it.  





 






  -115-  US-DOCS\122118934.6  (g)  The Trustee shall not be deemed to have notice of any matter (including any  Default or Event of Default) unless a Responsible Officer of the Trustee has actual knowledge  thereof or unless written notice thereof is received by the Trustee at the Corporate Trust Office  from the Issuer or any other obligor on the Notes, or from any Holder, and such notice references  the Notes and this Indenture.  (h)  In no event shall the Trustee be responsible or liable for special, indirect,  punitive or consequential loss or damage of any kind whatsoever (including loss of profit)  irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and  regardless of the form of action.  (i)  The rights, privileges, protections, immunities and benefits given to the  Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the  Trustee in each of its capacities hereunder, and each Agent, custodian and other Person  employed to act hereunder.  (j)  The Trustee shall not be required to give any bond or surety in respect of the  performance of its powers and duties hereunder.  (k)  The permissive right of the Trustee to take the actions permitted by this  Indenture shall not be construed as an obligation or a duty to so, unless so specified herein.  (l)  The Trustee will not be liable to the Holders if prevented or delayed in  performing any of its obligations or discretionary functions under this Indenture by reason of any  present or future law applicable to it, by any governmental or regulatory authority or by any  circumstances beyond its control.  (m)  No provision of this Indenture shall require the Trustee to do anything which,  in its opinion, may be illegal or contrary to applicable law or regulation.  (n)  The Trustee may retain counsel at the expense of the Issuer to assist it in  performing its duties under this Indenture. The Trustee may consult with such counsel, and the  advice or opinion of such counsel with respect to legal matters relating to this Indenture and the  Notes shall be full and complete authorization and protection from liability in respect of any  action taken, omitted or suffered by it hereunder in good faith and in reliance on the advice or  opinion of such counsel.  (o)  The Issuer and the Agents acknowledge and agree that in the event of a  Default or Event of Default, the Trustee may, by notice in writing to the Issuer and the Agents,  require that the Agents (other than to the extent the Issuer or a Subsidiary is acting as an agent)  act as agents of, and take instructions exclusively from, the Trustee. Prior to receiving such  written notice from the Trustee, the Agents shall be agents of the Issuer and need have no  concern for the interests of the Holders.  (p)  The Trustee may request that the Issuer deliver an Officer’s Certificate setting  forth the names of individuals and/or titles of officers authorized at such time to take specified  actions pursuant to this Indenture or the Notes.   





 






  -116-  US-DOCS\122118934.6  SECTION 7.03. Individual Rights of Trustee.  The Trustee in its individual or any  other capacity may become the owner or pledgee of Notes and may otherwise deal with the  Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee.   However, in the event that the Trustee acquires any conflicting interest (as such term is used in  the Trust Indenture Act) it must eliminate such conflict within 90 days or resign.  Any Agent  may do the same with like rights and duties.  The Trustee is also subject to Section 7.10 hereof.  SECTION 7.04. Trustee’s Disclaimer.  The Trustee shall not be responsible for  and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall  not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the  Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be  responsible for the use or application of any money received by any Paying Agent other than the  Trustee, and it shall not be responsible for any statement or recital herein or any statement in the  Notes or any other document in connection with the sale of the Notes or pursuant to this  Indenture other than its certificate of authentication.  SECTION 7.05. Notice of Defaults.  If a Default occurs and is continuing and if it  is actually known to a Responsible Officer of the Trustee, the Trustee shall electronically deliver  or mail to Holders of Notes a notice of the Default within 90 days after it is known to the  Trustee, unless such Default shall have been waived or cured.  Except in the case of a Default  relating to the payment of principal, premium, if any, or interest on any Note, the Trustee may  withhold from the Holders notice of any continuing Default if and so long as it determines in  good faith that withholding the notice is in the interests of the Holders of the Notes. The Trustee  shall have no obligation to accelerate the Notes if, in the best judgment of the Trustee,  acceleration of the Notes is not within the interests of the Holders of the Notes.  SECTION 7.06. [Reserved]    SECTION 7.07. Compensation and Indemnity.  The Issuer shall pay to the  Trustee from time to time such compensation for its acceptance of this Indenture and services  hereunder as the parties shall agree in writing from time to time.  The Trustee’s compensation  shall not be limited by any law on compensation of a trustee of an express trust.  In the event of  being requested by the Issuer to undertake duties which the Trustee reasonably determines to be  of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee, the  Issuer shall pay to the Trustee such additional remuneration as shall be agreed between the Issuer  and the Trustee.  The Issuer shall reimburse the Trustee promptly upon request for all  disbursements, advances and expenses properly incurred or made by it in addition to the  compensation for its services.  Such expenses shall include the properly incurred compensation,  disbursements and expenses of the Trustee’s agents and counsel.  The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee  and its officers, directors, employees, agents and any predecessor trustee and its officers,  directors, employees and agents for, and hold the Trustee harmless against, any and all loss,  damage, claims, liability or expense (including properly incurred attorneys’ fees and expenses)  incurred by it in connection with the acceptance or administration of this trust and the  performance of its duties hereunder (including the properly incurred costs and expenses of  enforcing this Indenture against the Issuer or any of the Guarantors (including this Section 7.07)  





 






  -117-  US-DOCS\122118934.6  or defending itself against any claim whether asserted by any Holder, the Issuer or any  Guarantor, or liability in connection with the acceptance, exercise or performance of any of its  powers or duties hereunder).  The Trustee shall notify the Issuer promptly of any claim for which  it may seek indemnity.  Failure by the Trustee to so notify the Issuer shall not relieve the Issuer  or the Guarantors of their obligations hereunder.  If requested by the Trustee, the Issuer shall  defend the claim and the Trustee may have separate counsel and the Issuer shall pay the properly  incurred fees and expenses of such counsel.  Neither the Issuer nor any Guarantor need  reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee  through the Trustee’s own willful misconduct, negligence or bad faith, as determined by a final  non-appealable judgment of a court of competent jurisdiction.  Neither the Issuer nor any  Guarantor need pay for any settlement made without its consent, which consent shall not be  unreasonably withheld.   The obligations of the Issuer and the Guarantors under this Section 7.07 shall  survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of  the Trustee.  Notwithstanding the provisions of Section 4.12 hereof, to secure the payment  obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien  prior to the Notes on all money or property held or collected by the Trustee, except that money  or property held in trust to pay principal and interest on particular Notes.  Such Lien shall survive  the satisfaction and discharge of this Indenture.  When the Trustee incurs expenses or renders services after an Event of Default  specified in Section 6.01(6) or (7) hereof occurs, the expenses and the compensation for the  services (including the fees and expenses of its agents and counsel) are intended to constitute  expenses of administration under any Bankruptcy Law.  For the avoidance of doubt, the rights, privileges, protections, immunities and  benefits given to the Trustee in this Section 7.07, including its right to be indemnified, are  extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and by  each agent (including the Agents), custodian and other Person employed to act hereunder.  SECTION 7.08. Replacement of Trustee.  A resignation or removal of the Trustee  and appointment of a successor Trustee shall become effective only upon the successor Trustee’s  acceptance of appointment as provided in this Section 7.08.  The Trustee may resign in writing at  any time by so notifying the Issuer.  The Holders of a majority in principal amount of the then- outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing.   The Issuer may remove the Trustee if:  (A)  the Trustee fails to comply with Section 7.10 hereof;  (B)  the Trustee is adjudged bankrupt or insolvent or an order for relief is  entered with respect to the Trustee under any Bankruptcy Law;  (C)  a custodian or public officer takes charge of the Trustee or its  property; or  





 






  -118-  US-DOCS\122118934.6  (D)  the Trustee becomes incapable of acting.  If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee  for any reason, the Issuer shall promptly appoint a successor Trustee.  Within one year after the  successor Trustee takes office, the Holders of a majority in principal amount of the then- outstanding Notes may appoint a successor Trustee to replace the successor Trustee or Agent, as  the case may be, appointed by the Issuer.  If a successor Trustee does not take office within 60 days after the retiring Trustee  resigns or is removed, (i) the retiring Trustee, the Issuer or the Holders of at least 10% in  principal amount of the then-outstanding Notes may petition any court of competent jurisdiction  for the appointment of a successor Trustee at the expense of the Issuer or (ii) the retiring Trustee  may appoint a successor Trustee at any time prior to the date on which a successor Trustee takes  office; provided that such appointment shall be satisfactory to the Issuer.  If the Trustee, after written request by any Holder who has been a Holder for at  least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of  competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.  A successor Trustee shall deliver a written acceptance of its appointment to the  retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the retiring Trustee  shall become effective, and the successor Trustee shall have all the rights, powers and duties of  the Trustee under this Indenture.  The successor Trustee shall electronically deliver or mail a  notice of its succession to Holders.  The retiring Trustee shall promptly transfer all property held  by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have  been paid and subject to the Lien provided for in Section 7.07 hereof.  Notwithstanding  replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section  7.07 hereof shall continue for the benefit of the retiring Trustee.  SECTION 7.09. Successor Trustee by Merger, etc.  If the Trustee consolidates,  merges or converts into, or transfers all or substantially all of its corporate trust, paying agent,  transfer agent or registrar business, as the case may be, to, another corporation, the successor  corporation without any further act shall be the successor Trustee.  Any corporation into which the Trustee for the time being may be merged or  converted shall, on the date when such merger, conversion, consolidation, sale or transfer  becomes effective and to the extent permitted by applicable law, be a successor Trustee under  this Indenture without the execution or filing of any paper or any further act on the part of any of  the parties to this Indenture. After the effective date all references in this Indenture to that  Trustee shall be deemed to be references to that corporation.  SECTION 7.10. Eligibility; Disqualification.  There shall at all times be a Trustee  hereunder that is a corporation organized and doing business under the laws of the United States  of America or of any state thereof that is authorized under such laws to exercise corporate trust  power, that is subject to supervision or examination by federal or state authorities and that has,  together with its parent, a combined capital and surplus of at least $150,000,000 as set forth in its  most recent published annual report of condition.  





 






  -119-  US-DOCS\122118934.6  ARTICLE VIII  LEGAL DEFEASANCE AND COVENANT DEFEASANCE  SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.  The  Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof applied  to all outstanding Notes and all obligations of the Guarantors with respect to the Guarantees  upon compliance with the conditions set forth in this Article VIII.  SECTION 8.02. Legal Defeasance and Discharge.  Upon the Issuer’s exercise  under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and the  Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be  deemed to have been discharged from their obligations with respect to all outstanding Notes and  Guarantees and all Events of Default cured on the date the conditions set forth below are  satisfied (“Legal Defeasance”).  For this purpose, Legal Defeasance means that the Issuer shall  be deemed to have paid and discharged the entire Indebtedness represented by the outstanding  Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section  8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) of this Section 8.02  (it being understood that such Notes shall not be deemed outstanding for accounting purposes),  and to have satisfied all its other obligations under the Notes and this Indenture including that of  the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute  proper instruments acknowledging the same) and to have cured all then-existing Events of  Default, except for the following provisions which shall survive until otherwise terminated or  discharged hereunder:  (a)  the rights of Holders to receive payments in respect of the principal of,  premium, if any, and interest on the Notes when such payments are due solely out of the  trust created pursuant to this Indenture referred to in Section 8.04 hereof;  (b)  the Issuer’s obligations with respect to the Notes concerning issuing  temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes  and the maintenance of an office or agency for payment and money for security payments  held in trust;   (c)  the rights, powers, trusts, duties and immunities of the Trustee, and the  Issuer’s obligations in connection therewith; and  (d)  this Section 8.02.  Subject to compliance with this Article VIII, the Issuer may exercise its option  under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03  hereof.  SECTION 8.03. Covenant Defeasance.  Upon the Issuer’s exercise under Section  8.01 hereof of the option applicable to this Section 8.03, the Issuer and the Guarantors shall,  subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their  obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10,  4.11, 4.12, 4.13, 4.14 and 4.15 hereof, clauses (4) and (5) of Section 5.01(a), Sections 5.01(c)  and 5.01(d) hereof with respect to the outstanding Notes on and after the date the conditions set  





 






  -120-  US-DOCS\122118934.6  forth in Section 8.04 hereof are satisfied (“Covenant Defeasance”), and the Notes shall thereafter  be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or  act of Holders (and the consequences of any thereof) in connection with such covenants, but  shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood  that the Notes shall not be deemed outstanding for accounting purposes).  For this purpose,  Covenant Defeasance means that, with respect to all outstanding Notes and the related  Guarantees, the Issuer and the Guarantors may omit to comply with and shall have no liability in  respect of any term, condition or limitation set forth in any such covenant, whether directly or  indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any  reference in any such covenant to any other provision herein or in any other document and such  omission to comply shall not constitute a Default or an Event of Default under Section 6.01  hereof, but, except as specified in this Section 8.03, the remainder of this Indenture and such  Notes and Guarantees shall be unaffected thereby.  In addition, upon the Issuer’s exercise under  Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction  of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) (solely with respect to the  covenants that are released upon a Covenant Defeasance), 6.01(4), 6.01(5), 6.01(6) (solely with  respect to a Significant Subsidiary of the Issuer but not with respect to the Issuer), 6.01(7) (solely  with respect to a Significant Subsidiary of the Issuer but not with respect to the Issuer) and  6.01(8) hereof shall not constitute Events of Default.  SECTION 8.04. Conditions to Legal or Covenant Defeasance.  The following  shall be conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding  Notes:  In order to exercise either Legal Defeasance or Covenant Defeasance with respect  to the Notes:  (1) the Issuer must irrevocably deposit with the Trustee or an agent of the Trustee,  in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government  Obligations, or a combination thereof, in such amounts as will be sufficient, in the  opinion of a nationally recognized firm of independent public accountants, a nationally  recognized investment bank or a nationally recognized appraisal or valuation firm, to pay  the principal of, premium, if any, and interest due on the Notes to the stated maturity date  or to the Redemption Date, as the case may be, of such principal, premium, if any, or  interest on the Notes and the Issuer must specify whether the Notes are being defeased to  maturity or to a particular Redemption Date; provided that, upon any redemption that  requires the payment of the Applicable Premium, the amount deposited shall be sufficient  for purposes of this Indenture to the extent that an amount is deposited with the Trustee  or an agent of the Trustee equal to the Applicable Premium calculated as of the date of  the notice of redemption, with any deficit as of the date of redemption (any such amount,  the “Applicable Premium Deficit”) only required to be deposited with the Trustee or an  agent of the Trustee on or prior to the redemption date. Any Applicable Premium Deficit  shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with  the deposit of such Applicable Premium Deficit that confirms that such Applicable  Premium Deficit shall be applied toward such redemption;  (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee  





 






  -121-  US-DOCS\122118934.6  an Opinion of Counsel confirming that, subject to customary assumptions and exclusions,  (A)  the Issuer has received from, or there has been published by, the  United States Internal Revenue Service a ruling, or  (B)  since the original issuance of the Notes, there has been a change in the  applicable U.S. federal income tax law,  in either case to the effect that, and based thereon such Opinion of Counsel shall confirm  that, subject to customary assumptions and exclusions, the Holders or beneficial owners  of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes,  as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal  income tax on the same amounts, in the same manner and at the same times as would  have been the case if such Legal Defeasance had not occurred;  (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the  Trustee an Opinion of Counsel confirming that, subject to customary assumptions and  exclusions, the Holders or beneficial owners of the Notes will not recognize income, gain  or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and  will be subject to U.S. federal income tax on the same amounts, in the same manner and  at the same times as would have been the case if such Covenant Defeasance had not  occurred;  (4) no Event of Default (other than that resulting from any borrowing of funds to  be applied to make such deposit and any similar and simultaneous deposit relating to  other Indebtedness and, in each case, the granting of Liens in connection therewith) shall  have occurred and be continuing on the date of such deposit;  (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or  violation of, or constitute a default under, the Senior Credit Facility or any other material  agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor  is a party or by which the Issuer or any Guarantor is bound (other than that resulting from  any borrowing of funds to be applied to make such deposit required to effect such Legal  Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to  other Indebtedness and, in each case, the granting of Liens in connection therewith);  (6) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating  that the deposit was not made by the Issuer with the intent of defeating, hindering,  delaying or defrauding any creditor of the Issuer, any Guarantor or others; and  (7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an  Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions  and exclusions) each stating that all conditions precedent provided for or relating to the  Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied  with.  Notwithstanding the foregoing, an Opinion of Counsel required by clause (2) of  this Section 8.04 with respect to Legal Defeasance need not be delivered if all of the Notes  





 






  -122-  US-DOCS\122118934.6  theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will  become due and payable within one year or are to be called for redemption within one year under  arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in  the name, and at the expense, of the Issuer.  SECTION 8.05. Deposited Money and Government Securities to Be Held in  Trust; Other Miscellaneous Provisions.  Subject to Section 8.06 hereof, all money and U.S.  Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to  Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the  Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment,  either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying  Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to  become due thereon in respect of principal, premium and interest, but such money need not be  segregated from other funds except to the extent required by law.  The Issuer shall pay and indemnify the Trustee against any tax, fee or other  charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to  Section 8.04 hereof or the principal and interest received in respect thereof other than any such  tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes  and the related Guarantees.  Anything in this Article VIII to the contrary notwithstanding, the Trustee shall  deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S.  Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a  nationally recognized firm of independent public accountants, a nationally recognized  investment bank or a nationally recognized appraisal or valuation firm expressed in a written  certification thereof delivered to the Trustee (which may be the opinion delivered under  Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be  deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.  SECTION 8.06. Repayment to Issuer.  Subject to any applicable abandoned  property law, any money deposited with the Trustee or any Paying Agent, or then held by the  Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Note and  remaining unclaimed for two years after such principal, and premium, if any, or interest has  become due and payable shall be paid to the Issuer on its request or pursuant to applicable law or  (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall  thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such  Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof,  shall thereupon cease.  SECTION 8.07. Reinstatement.  If the Trustee or Paying Agent is unable to apply  any U.S. dollars or U.S. Government Obligations in accordance with Section 8.05 hereof, as the  case may be, by reason of any order or judgment of any court or governmental authority  enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the  Guarantors’ obligations under this Indenture and the Notes and Guarantees shall be revived and  reinstated as though no deposit had occurred pursuant to Section 8.04 hereof until such time as  the Trustee or Paying Agent is permitted to apply all such money in accordance with Section  





 






  -123-  US-DOCS\122118934.6  8.05 hereof; provided that, if the Issuer makes any payment of principal of, premium, if any, or  interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated  to the rights of the Holders of the Notes to receive such payment from the money held by the  Trustee or Paying Agent.  ARTICLE IX  AMENDMENT, SUPPLEMENT AND WAIVER  SECTION 9.01. Without Consent of Holders.  Notwithstanding Section 9.02  hereof, the Issuer, the Guarantors and the Trustee may amend or supplement this Indenture and  any Guarantee or Notes without the consent of any Holder:   (1) to cure any ambiguity, omission, mistake, defect or inconsistency;  (2) to provide for uncertificated Notes in addition to or in place of certificated  Notes;  (3) to comply with Section 5.01 hereof;  (4) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to  the Holders;  (5) to make any change that would provide any additional rights or benefits to the  Holders or that does not adversely affect the legal rights under this Indenture of any such  Holder in any material respect;  (6) to add covenants for the benefit of the Holders or to surrender any right or  power conferred upon the Issuer or any Guarantor;  (7) to provide for the issuance of Additional Notes in accordance with the terms  of this Indenture;  (8) to evidence and provide for the acceptance and appointment under this  Indenture of a successor Trustee or a successor paying agent hereunder pursuant to the  requirements hereof;  (9) to provide for the issuance of exchange notes or private exchange notes, which  are identical to exchange notes except that they are not freely transferable;  (10) to add a Guarantor or co-obligor under this Indenture or to release a  Guarantor in accordance with the terms of this Indenture;  (11) to conform the text of this Indenture, the Guarantees or the Notes to any  provision of the “Description of the Notes” section of the Offering Memorandum to the  extent that such provision in such “Description of the Notes” section was intended to be a  verbatim recitation of a provision of this Indenture, the Guarantees or the Notes (as  determined in good faith by the Issuer);   





 






  -124-  US-DOCS\122118934.6  (12) to amend the provisions of this Indenture relating to the transfer and  legending of Notes as permitted by this Indenture, including to facilitate the issuance and  administration of the Notes; provided that (i) compliance with this Indenture as so  amended would not result in Notes being transferred in violation of the Securities Act or  any applicable securities law and (ii) such amendment does not materially and adversely  affect the rights of Holders to transfer Notes;   (13) to mortgage, pledge, hypothecate or grant any other Lien in favor of the  Trustee for the benefit of Holders, as security for the payment and performance of all or  any portion of the Notes, in any property or assets;  (14) to provide for the succession of any parties to this Indenture (and other  amendments that are administrative or ministerial in nature); or  (15) to comply with the rules of any applicable securities depositary.  Upon the request of the Issuer accompanied by a resolution of its board of  directors authorizing the execution of any such amended or supplemental indenture, and upon  receipt by the Trustee of the documents described in Section 7.02 hereof (to the extent requested  by the Trustee and subject to the last sentence of Section 9.05 hereof), the Trustee shall join with  the Issuer and the Guarantors in the execution of any amended or supplemental indenture  authorized or permitted by the terms of this Indenture and to make any further appropriate  agreements and stipulations that may be therein contained, but the Trustee shall have the right,  but not be obligated to, enter into such amended or supplemental indenture that affects its own  rights, duties or immunities under this Indenture or otherwise.  Notwithstanding the foregoing,  neither an Opinion of Counsel nor an Officer’s Certificate nor a board resolution shall be  required in connection with the addition of a Guarantor under this Indenture upon execution and  delivery by such Guarantor and the Trustee of a supplemental indenture to this Indenture, the  form of which is attached as Exhibit D hereto.  After an amendment, supplement or waiver under this Section 9.01 becomes  effective, the Issuer shall send to the Holders affected thereby a notice briefly describing the  amendment, supplement or waiver. Any failure of the Issuer to send such notice, or any defect  therein, shall not, however, in any way impair or affect the validity of any such amended or  supplemental indenture or waiver.  SECTION 9.02. With Consent of Holders.  Except as provided below in this  Section 9.02, the Issuer, the Guarantors and the Trustee may amend or supplement this  Indenture, the Notes and the Guarantees with the consent of the Holders of at least a majority in  principal amount of the Notes (including Additional Notes, if any) then outstanding (including  consents obtained in connection with a tender offer or exchange offer for, or purchase of, the  Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default or  compliance with any provision of this Indenture or the Notes may be waived with the consent of  the Holders of a majority in principal amount of the then-outstanding Notes (including  Additional Notes, if any), other than the Notes beneficially owned by the Issuer or its Affiliates  (including consents obtained in connection with a tender offer or exchange offer for, or purchase  





 






  -125-  US-DOCS\122118934.6  of, the Notes).  Section 2.08 hereof and Section 2.09 hereof shall determine which Notes are  considered to be “outstanding” for the purposes of this Section 9.02.  Upon the request of the Issuer accompanied by a resolution of its board of  directors authorizing the execution of any such amended or supplemental indenture, and upon the  filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as  aforesaid, the Trustee shall join with the Issuer and the Guarantors in the execution of such  amended or supplemental indenture unless such amended or supplemental indenture directly  affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which  case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or  supplemental indenture.  It shall not be necessary for the consent of the Holders under this Section 9.02 to  approve the particular form of any proposed amendment, waiver or consent, but it shall be  sufficient if such consent approves the substance thereof.  For the avoidance of doubt, no  transaction made in compliance with, amendment to, or deletion of, any of the covenants  described under Article IV or Section 5.01 hereof shall be deemed to impair or affect any rights  of Holders to receive payment of principal of, or premium, if any, or interest on, the Notes.  After an amendment, supplement or waiver under this Section 9.02 becomes  effective, the Issuer shall send to the Holders affected thereby a notice briefly describing the  amendment, supplement or waiver.  Any failure of the Issuer to send such notice, or any defect  therein, shall not, however, in any way impair or affect the validity of any such amended or  supplemental indenture or waiver.  Notwithstanding the foregoing, without the consent of each Holder affected, no  amendment may:  (1) reduce the principal amount of such Notes whose Holders must consent to an  amendment, supplement or waiver;  (2) reduce the principal of or change the fixed final maturity of any such Note or  alter or waive the provisions with respect to the redemption of such Notes (other than  provisions relating to (i) notice periods (to the extent consistent with applicable  requirements of clearing and settlement systems) for redemption and conditions to  redemption and (ii) Section 4.10 and Section 4.14 hereof);  (3) reduce the rate of or change the time for payment of interest on any Note;  (4) waive a Default or Event of Default in the payment of principal of or  premium, if any, or interest on the Notes, except a rescission of acceleration of the Notes  by the Holders of at least a majority in aggregate principal amount of the Notes then  outstanding and a waiver of the payment default that resulted from such acceleration, or  in respect of a covenant or provision contained in this Indenture or any Guarantee which  cannot be amended or modified without the consent of all Holders;  (5) make any Note payable in money other than that stated therein;  





 






  -126-  US-DOCS\122118934.6  (6) make any change in the provisions of this Indenture relating to waivers of past  Defaults or the rights of Holders to receive payments of principal of or premium, if any,  or interest on the Notes;  (7) make any change in these amendment and waiver provisions;  (8) impair the contractual right of any Holder to receive payment of principal of,  premium, if any, or interest on such Holder’s Notes on or after the due dates therefor or  to institute suit for the enforcement of any payment on or with respect to such Holder’s  Notes;  (9) contractually subordinate the Notes to any other Indebtedness of the Issuer or  any Guarantor; or  (10) except as expressly permitted by this Indenture, modify the Guarantees of  any Significant Subsidiary in any manner materially adverse to the Holders (as  determined by the Issuer in good faith).  SECTION 9.03. Revocation and Effect of Consents.  Until an amendment,  supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by  the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same  debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.   However, any such Holder or subsequent Holder may revoke the consent as to its Note if the  Trustee receives written notice of revocation before the date the amendment, supplement or  waiver becomes effective.  An amendment, supplement or waiver becomes effective in  accordance with its terms and thereafter binds every Holder.  The Issuer may, but shall not be obligated to, fix a record date for the purpose of  determining the Holders entitled to consent to any amendment, supplement, or waiver.  If a  record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were  Holders at such record date (or their duly designated proxies), and only such Persons, shall be  entitled to consent to such amendment, supplement, or waiver or to revoke any consent  previously given, whether or not such Persons continue to be Holders after such record date.  No  such consent shall be valid or effective for more than 120 days after such record date unless the  consent of the requisite number of Holders has been obtained.  SECTION 9.04. Notation on or Exchange of Notes.  The Trustee may place an  appropriate notation about an amendment, supplement or waiver on any Note thereafter  authenticated.  The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt  of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or  waiver.  Failure to make the appropriate notation or issue a new Note shall not affect the  validity and effect of such amendment, supplement or waiver.  SECTION 9.05. Trustee to Sign Amendments, etc.  The Trustee shall sign any  amendment, supplement or waiver authorized pursuant to this Article IX if the amendment,  supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the  





 






  -127-  US-DOCS\122118934.6  Trustee.  The Issuer may not sign an amendment, supplement or waiver until the board of  directors of the Issuer approves it.  In executing any amendment, supplement or waiver, the  Trustee shall be entitled to receive, upon request, and (subject to Section 7.01 hereof) shall be  fully protected in relying upon, in addition to the documents required by Section 12.03 hereof, an  Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment or  supplement is authorized or permitted by this Indenture and that such amendment, supplement or  waiver is the valid and binding obligation of the Issuer and any Guarantors party thereto,  enforceable against them in accordance with its terms, subject to customary exceptions, and  complies with the provisions hereof.   Notwithstanding the foregoing, neither an Opinion of  Counsel nor an Officer’s Certificate nor board resolution will be required for the Trustee to  execute any amendment or supplement adding a new Guarantor under this Indenture.  SECTION 9.06.  Additional Voting Terms; Calculation of Principal Amount.  All  Notes issued under this Indenture shall vote and consent together on all matters (as to which any  Notes may vote) as one class.  Determinations as to whether Holders of the requisite aggregate  principal amount of Notes have concurred in any direction, waiver or consent shall be made in  accordance with this Article IX.  ARTICLE X  GUARANTEES  SECTION 10.01. Guarantee.  Subject to this Article X, each of the Guarantors  hereby, jointly and severally, irrevocably and unconditionally guarantees, on a senior unsecured  basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and  its successors and assigns, irrespective of the validity and enforceability of this Indenture, the  Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of and  interest and premium, if any, on the Notes shall be promptly paid in full when due, whether at  maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and  interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the  Trustee hereunder or thereunder shall be promptly paid in full, all in accordance with the terms  hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes  or any of such other obligations, that same shall be promptly paid in full when due in accordance  with the terms of the extension or renewal, whether at stated maturity, by acceleration or  otherwise.  Failing payment when due of any amount so guaranteed for whatever reason, the  Guarantors shall be jointly and severally obligated to pay the same promptly.  Each Guarantor  agrees that this is a guarantee of payment and not a guarantee of collection.  The Guarantors hereby agree that their obligations hereunder shall be  unconditional, irrespective of the validity, regularity or enforceability of the Notes or this  Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder  with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer,  any action to enforce the same or any other circumstance which might otherwise constitute a  legal or equitable discharge or defense of a guarantor (other than payment in full of all of the  obligations of the Issuer under this Indenture or under the Notes).  Each Guarantor hereby waives  diligence, presentment, demand of payment, filing of claims with a court in the event of  insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer,  protest, notice and all demands whatsoever and covenants that this Guarantee shall not be  





 






  -128-  US-DOCS\122118934.6  discharged except by full payment of the obligations contained in the Notes and this Indenture or  by release in accordance with the provisions of this Indenture.  Each Guarantor also agrees to pay any and all costs and expenses (including  reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under  this Section 10.01.  If any Holder or the Trustee is required by any court or otherwise to return to the  Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in  relation to either the Issuer or the Guarantors, then any amount paid either to the Trustee or such  Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and  effect.  Each Guarantor agrees that it shall not be entitled to any right of subrogation in  relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all  obligations guaranteed hereby.  Each Guarantor further agrees that, as between the Guarantors,  on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the  obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the  purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing  such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any  declaration of acceleration of such obligations as provided in Article VI hereof, such obligations  (whether or not due and payable) shall forthwith become due and payable by the Guarantors for  the purpose of this Guarantee.  The Guarantors shall have the right to seek contribution from any  non-paying Guarantor so long as the exercise of such right does not impair the rights of the  Holders under the Guarantees.    Until released in accordance with Section 10.06 hereof, each Guarantee shall  remain in full force and effect and continue to be effective should any petition be filed by or  against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an  assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any  significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to  be effective or be reinstated, as the case may be, if at any time payment of the Notes are,  pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or  returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,”  “fraudulent transfer” or otherwise, all as though such payment had not been made.  In the event  that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall,  to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount  paid and not so rescinded, reduced, restored or returned.    In case any provision of any Guarantee shall be invalid, illegal or unenforceable,  the validity, legality, and enforceability of the remaining provisions shall not in any way be  affected or impaired thereby.  The Guarantee issued by any Guarantor shall be a general unsecured senior  obligation of such Guarantor and shall be pari passu in right of payment with all existing and  future Senior Indebtedness of such Guarantor, if any.  Each payment to be made by a Guarantor in respect of its Guarantee shall be  





 






  -129-  US-DOCS\122118934.6  made without set-off, counterclaim, reduction or diminution of any kind or nature.  SECTION 10.02. Limitation on Guarantor Liability.  Each Guarantor, and by its  acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that  the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes  of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer  Act or any similar federal or state law to the extent applicable to any Guarantee.  To effectuate  the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree  that the obligations of each Guarantor shall be limited to the maximum amount as will, after  giving effect to such maximum amount and all other contingent and fixed liabilities of such  Guarantor that are relevant under such laws and after giving effect to any collections from, rights  to receive contribution from or payments made by or on behalf of any other Guarantor in respect  of the obligations of such other Guarantor under this Article X, result in the obligations of such  Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer  under applicable law.  Each Guarantor that makes a payment under its Guarantee shall be entitled  upon payment in full of all guaranteed obligations under this Indenture to a contribution from  each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such  payment based on the respective net assets of all the Guarantors at the time of such payment  determined in accordance with GAAP.  SECTION 10.03. Execution and Delivery.  To evidence its Guarantee set forth in  Section 10.01 hereof, each Guarantor hereby agrees that this Indenture (or a supplemental  indenture in the form of Exhibit D hereto) shall be executed on behalf of such Guarantor by one  of its authorized officers or other representatives.  Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof  shall remain in full force and effect notwithstanding the absence of the endorsement of any  notation of such Guarantee on the Notes.  If an officer whose signature is on this Indenture (or a supplemental indenture in  the form of Exhibit D hereto) no longer holds that office at the time the Trustee authenticates the  Note, the Guarantee shall be valid nevertheless.  The delivery of any Note by the Trustee, after the authentication thereof  hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of  the Guarantors.  If required by Section 4.15 hereof, the Issuer shall cause any Restricted  Subsidiary to comply with the provisions of Section 4.15 hereof and this Article X, to the extent  applicable.  SECTION 10.04. Subrogation.  Each Guarantor shall be subrogated to all rights  of Holders of Notes against the Issuer in respect of any amounts paid by any Guarantor pursuant  to the provisions of Section 10.01 hereof; provided that, if an Event of Default has occurred and  is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or  based upon, such right of subrogation until all amounts then due and payable by the Issuer under  this Indenture or the Notes shall have been paid in full.  





 






  -130-  US-DOCS\122118934.6  SECTION 10.05. Benefits Acknowledged.  Each Guarantor acknowledges that it  will receive direct and indirect benefits from the financing arrangements contemplated by this  Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly  made in contemplation of such benefits.  SECTION 10.06. Release of Guarantees.  A Guarantee by a Guarantor shall be  automatically and unconditionally released and discharged, without any further action required  on the part of the Guarantor, the Trustee or any Holder of Notes, upon:  (1) any sale, exchange, disposition or transfer (by merger, consolidation,  dividend, distribution or otherwise) of (a) the Capital Stock of such Guarantor, after  which the applicable Guarantor is no longer a Restricted Subsidiary, or (b) all or  substantially all the assets of such Guarantor, in each case, made in compliance with the  applicable provisions of this Indenture;  (2) the release or discharge of the guarantee by such Guarantor of Indebtedness  under the Senior Credit Facility or such other guarantee that resulted in the creation of  such Guarantee, except a discharge or release by, or as a result of, payment under such  guarantee (it being understood that a release subject to a contingent reinstatement is still a  release);  (3) the designation of any Restricted Subsidiary that is a Guarantor as an  Unrestricted Subsidiary in compliance with Section 4.07 hereof and the definition of  “Unrestricted Subsidiary”;  (4) upon the merger or consolidation of any Guarantor with and into the Issuer or  another Guarantor that is the surviving Person in such merger or consolidation, or upon  the liquidation of such Guarantor following the transfer of all or substantially all of its  assets to the Issuer or another Guarantor;   (5) the exercise by the Issuer of its Legal Defeasance option or Covenant  Defeasance option in accordance with Article VIII hereof or the discharge of the Issuer’s  obligations under this Indenture in accordance with the terms of this Indenture; or  (6) the occurrence of a Covenant Suspension Event.  The Issuer shall notify the Trustee in writing of the release, discharge or  termination of  a Guarantee in accordance with this Section 10.06; provided that no such  notification shall be a condition for the release, discharge or termination of a Guarantee to be  effective; provided further that the Trustee shall be under no obligation to inform Holders of the  occurrence of the release, discharge or termination of a Guarantee.  ARTICLE XI  SATISFACTION AND DISCHARGE  SECTION 11.01. Satisfaction and Discharge.  This Indenture shall be discharged  and shall cease to be of further effect as to the Notes when either:  





 






  -131-  US-DOCS\122118934.6  (1) all Notes theretofore authenticated and delivered, except lost, stolen or  destroyed Notes which have been replaced or paid and Notes for whose payment money  has heretofore been deposited in trust, have been delivered to the Trustee for cancellation;  or  (2) (A) all Notes not theretofore delivered to the Trustee for cancellation have  become due and payable by reason of the making of a notice of redemption or otherwise,  will become due and payable within one year or are to be called for redemption within  one year under arrangements satisfactory to the Trustee for the giving of notice of  redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer or  any Guarantor has irrevocably deposited or caused to be deposited with the Trustee or an  agent of the Trustee as trust funds in trust solely for the benefit of the Holders, cash in  U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as  will be sufficient without consideration of any reinvestment of interest to pay and  discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for  cancellation for principal, premium, if any, and accrued interest to the date of maturity or  redemption; provided that, upon any redemption that requires the payment of the  Applicable Premium, the amount deposited shall be sufficient for purposes of this  Indenture to the extent that an amount is deposited with the Trustee or an agent of the  Trustee equal to the Applicable Premium calculated as of the date of the notice of  redemption, with any Applicable Premium Deficit only required to be deposited with the  Trustee or an agent of the Trustee on or prior to the Redemption Date. Any Applicable  Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee  simultaneously with the deposit of such Applicable Premium Deficit that confirms that  such Applicable Premium Deficit shall be applied toward such redemption;  (B) no Event of Default (other than that resulting from any borrowing of funds to  be applied to make such deposit or any similar and simultaneous deposit relating to other  Indebtedness and, in each case, the granting of Liens in connection therewith) with  respect to this Indenture or the Notes shall have occurred and be continuing on the date of  such deposit or shall occur as a result of such deposit and such deposit will not result in a  breach or violation of, or constitute a default under the Senior Credit Facility or any other  material agreement or instrument (other than this Indenture) to which the Issuer or any  Guarantor is a party or by which the Issuer or any Guarantor is bound (other than  resulting from any borrowing of funds to be applied to make such deposit and any similar  and simultaneous deposit relating to other Indebtedness and, in each case, the granting of  Liens in connection therewith);  (C) the Issuer has paid or caused to be paid all sums payable by it under this  Indenture; and  (D) the Issuer has delivered irrevocable instructions to the Trustee or an agent of  the Trustee to apply the deposited money toward the payment of the Notes at maturity or  the Redemption Date, as the case may be.  In addition, the Issuer must deliver an Officer’s Certificate (which may be subject  to customary assumptions and exclusions) to the Trustee stating that all conditions precedent to  





 






  -132-  US-DOCS\122118934.6  satisfaction and discharge have been satisfied; provided that any such counsel may rely on an  Officer’s Certificate as to matters of fact (including as to compliance with the foregoing  subclauses (A), (B), (C) and (D) of clause (2) of this Section 11.01).  Notwithstanding the satisfaction and discharge of this Indenture, if money shall  have been deposited with the Trustee pursuant to subclause (A) of clause (2) of this  Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall survive.  The Issuer shall pay and indemnify the Trustee against any tax, fee or other  charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to  Section 11.01 hereof or the principal and interest received in respect thereof other than any such  tax, fee or other charge which by law is for the account of the Holders.  SECTION 11.02. Application of Trust Money.  Subject to the provisions of  Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall  be held in trust and applied by it, in accordance with the provisions of the Notes and this  Indenture, to the payment, either directly or through any Paying Agent (including the Issuer  acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of  the principal (and premium, if any) and interest for whose payment such money has been  deposited with the Trustee; but such money need not be segregated from other funds except to  the extent required by law.  If the Trustee or Paying Agent is unable to apply any money or U.S. Government  Obligations in accordance with Section 11.01 hereof by reason of any legal proceeding or by  reason of any order or judgment of any court or governmental authority enjoining, restraining or  otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this  Indenture and the Notes shall be revived and reinstated as though no deposit had occurred  pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal  of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the  Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment  from the money or U.S. Government Obligations held by the Trustee or Paying Agent.  ARTICLE XII  MISCELLANEOUS  SECTION 12.01. Notices.  Any notice or communication by the Issuer, any  Guarantor or the Trustee to the others is duly given if in writing in the English language and  delivered in person or mailed by first-class mail (registered or certified, return receipt requested),  electronic mail in PDF format, facsimile transmission or overnight air courier guaranteeing next  day delivery, to the others’ address:  If to the Issuer and/or any Guarantor:   Dycom Industries, Inc.  11780 US Highway 1, Suite 600  Palm Beach Gardens, FL 33408  Attention:  Chief Financial Officer  Email:  drew.deferrari@dycominc.com  





 






  -133-  US-DOCS\122118934.6  With a courtesy copy to (the provision of which copy shall not be required in  order to effectuate notice under this Indenture):   Dycom Industries, Inc.  11780 US Highway 1, Suite 600  Palm Beach Gardens, FL 33408  Attention:  General Counsel  Email:  ryan.urness@dycominc.com  If to the Trustee:  U.S. Bank National Association, as Trustee  100 Wall Street, Suite 600  New York, NY 10005  Attention: Global Corporate Trust  and  U.S. Bank National Association, as Trustee  225 Water Street, Suite 700  Jacksonville, Florida 32202   Attention: Global Corporate Trust    The Issuer, any Guarantor or the Trustee, by notice to the others, may designate  additional or different addresses for subsequent notices or communications.  All notices and communications (other than those sent to Holders) shall be  deemed to have been duly given: at the time delivered by hand, if personally delivered; five  calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail;  when receipt is acknowledged, if faxed; on the first date on which publication or electronic  delivery is made, if given by publication or electronic delivery; and the next Business Day after  timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery;  provided that any notice or communication delivered to the Trustee shall be deemed effective  upon actual receipt thereof.  Any notice or communication to a Holder shall be electronically delivered, mailed  by first-class mail, certified or registered, return receipt requested, or by overnight air courier  guaranteeing next day delivery to its address shown on the Note Register kept by the Registrar.   Failure to deliver a notice or communication to a Holder or any defect in it shall not affect its  sufficiency with respect to other Holders.  If a notice or communication is mailed or otherwise delivered in the manner  provided above within the time prescribed, such notice or communication shall be deemed duly  given, whether or not the addressee receives it.  If the Issuer delivers a notice or communication to Holders, it shall deliver a copy  to the Trustee and each Agent at the same time.  





 






  -134-  US-DOCS\122118934.6  Notwithstanding any other provision of this Indenture or any Note, where this  Indenture or any Note provides for notice of any event or any other communication (including  any notice of redemption or repurchase) to a holder of a Global Note (whether by mail or  otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee)  pursuant to the standing instructions from the Depositary or its designee, including by electronic  mail in accordance with accepted practices at the Depositary.  SECTION 12.02. Communication by Holders with Other Holders.  Holders may  communicate with other Holders with respect to their rights under this Indenture or the Notes.    SECTION 12.03. Certificate and Opinion as to Conditions Precedent.  Upon any  request or application by the Issuer or any of the Guarantors to the Trustee to take any action  under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the  Trustee:   (A)  An Officer’s Certificate in form reasonably satisfactory to the Trustee  (which shall include the statements set forth in Section 12.04 hereof) stating that,  in the opinion of the signers, all conditions precedent and covenants, if any,  provided for in this Indenture relating to the proposed action have been satisfied;  and  (B)  An Opinion of Counsel (which may be subject to customary  assumptions and exclusions) in form reasonably satisfactory to the Trustee (which  shall include the statements set forth in Section 12.04 hereof) stating that, in the  opinion of such counsel, all such conditions precedent and covenants have been  satisfied; provided that such Opinion of Counsel shall not be required to be  furnished to the Trustee in connection with the authentication and delivery of the  Initial Notes on the Issue Date.  SECTION 12.04. Statements Required in Certificate or Opinion.  Each certificate  or opinion with respect to compliance with a condition or covenant provided for in this Indenture  (other than a certificate provided pursuant to Section 4.04 hereof) shall include:  (A)  a statement that the Person making such certificate or opinion has  read such covenant or condition;  (B)  a brief statement as to the nature and scope of the examination or  investigation upon which the statements or opinions contained in such certificate  or opinion are based;  (C)  a statement that, in the opinion of such Person, he or she has made  such examination or investigation as is necessary to enable him to express an  informed opinion as to whether or not such covenant or condition has been  complied with; and  (D)  a statement as to whether or not, in the opinion of such Person, such  condition or covenant has been complied with;   





 






  -135-  US-DOCS\122118934.6  provided, however, that with respect to matters of fact an Opinion of Counsel may rely on an  officer’s certificate or certificates of public officials.  SECTION 12.05. Rules by Trustee and Agents.  The Trustee may make  reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may  make reasonable rules and set reasonable requirements for its functions.  SECTION 12.06. No Personal Liability of Directors, Officers, Employees,  Members and Stockholders.  No director, officer, employee, member, incorporator or  stockholder of the Issuer or any Restricted Subsidiary shall have any liability for any obligations  of the Issuer or the Guarantors under the Notes, the Guarantees or this Indenture or for any claim  based on, in respect of, or by reason of such obligations or their creation.  Each Holder by  accepting Notes waives and releases all such liability.  The waiver and release are part of the  consideration for issuance of the Notes.    SECTION 12.07. Governing Law.  THIS INDENTURE, THE NOTES AND  THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE  WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.   SECTION 12.08. Waiver of Jury Trial.  EACH PARTY HEREBY  IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING  ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE  TRANSACTIONS CONTEMPLATED HEREBY.  SECTION 12.09. Force Majeure.  In no event shall the Trustee be responsible or  liable for any failure or delay in the performance of its obligations under this Indenture arising  out of or caused by, directly or indirectly, forces beyond its reasonable control, including strikes,  work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or  natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,  communications or computer (software or hardware) services.  SECTION 12.10. No Adverse Interpretation of Other Agreements.  This  Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer  or its Restricted Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement  may not be used to interpret this Indenture.  SECTION 12.11. Successors.  All agreements of the Issuer in this Indenture and  the Notes shall bind its successors.  All agreements of the Trustee in this Indenture shall bind its  successors.  All agreements of each Guarantor in this Indenture shall bind its successors, except  as otherwise provided in Section 10.06 hereof.  SECTION 12.12. Severability.  In case any provision in this Indenture or in the  Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the  remaining provisions shall not in any way be affected or impaired thereby.  SECTION 12.13. Counterpart Originals.  The parties may sign any number of  copies of this Indenture.  Each signed copy shall be an original, but all of them together represent  





 






  -136-  US-DOCS\122118934.6  the same agreement.  The exchange of copies of this Indenture and of signature pages by  facsimile or PDF transmissions shall constitute effective execution and delivery of this Indenture  as to the parties hereto and may be used in lieu of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their  original signatures for all purposes. All notices, approvals, consents, requests and any  communications hereunder must be in writing (provided that any communication sent to Trustee  hereunder must be in the form of a document that is signed manually or by way of a digital  signature, in English).  The Issuer agrees to assume all risks arising out of the use of using digital  signatures and electronic methods to submit communications to Trustee, including without  limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and  misuse by third parties.  SECTION 12.14. Table of Contents, Headings, etc.  The Table of Contents,  Cross-Reference Table and headings of the Articles and Sections of this Indenture have been  inserted for convenience of reference only, are not to be considered a part of this Indenture and  shall in no way modify or restrict any of the terms or provisions hereof.  SECTION 12.15. USA Patriot Act.  In order to comply with the laws, rules,  regulations and executive orders in effect from time to time applicable to banking institutions,  including, without limitation, those relating to the funding of terrorist activities and money  laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable  AML Law”), the Trustee and Agents are required to obtain, verify, record and update certain  information relating to individuals and entities which maintain a business relationship with the  Trustee and Agents. Accordingly, each of the parties agree to provide to the Trustee and Agents,  upon their request from time to time such identifying information and documentation as may be  available for such party in order to enable the Trustee and Agents to comply with Applicable  AML Law.  [Signatures on following pages]    





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






    A-1  US-DOCS\122118934.6  EXHIBIT A  [Face of Note]  [Insert the Global Note Legend, if applicable pursuant to the provisions of the  Indenture]  [Insert the Private Placement Legend, if applicable pursuant to the provisions of  the Indenture]  [Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to  the provisions of the Indenture]  





 






    A-2  US-DOCS\122118934.6  CUSIP  [                     ]  ISIN  [                    ]1    [RULE 144A][REGULATION S] [GLOBAL] NOTE    4.50% Senior Note due 2029        No. ___  [$______________]      Dycom Industries, Inc., a Florida corporation, promises to pay to [__________] or registered  assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note  attached hereto]2 [of ________________________ dollars]3 on April 15, 2029.  Interest Payment Dates:  April 15 and October 15, commencing [October 15, 2021]4  Record Dates:  April 1 and October 1  Additional provisions of this Note are set forth on the other side of this Note.                                                    1 144A CUSIP:  267475 AD3   ISIN:  US267475AD30   Regulation S CUSIP:  U26723 AB9  ISIN:  USU26723AB92  2   Insert in Global Notes only.  3   Insert in Definitive Notes only.  4  For Notes issued on the Issue Date.   





 






    A-3  US-DOCS\122118934.6  IN WITNESS HEREOF, the Issuer has caused this instrument to be duly  executed.  DYCOM INDUSTRIES, INC.        By:         Name:    Title:    





 






    A-4  US-DOCS\122118934.6  Dated: [                              ]    CERTIFICATE OF AUTHENTICATION  U.S. BANK NATIONAL ASSOCIATION,  not in its personal capacity, but in its  capacity as Trustee, certifies that this is one  of the Notes referred to in the Indenture.    By:        Authorized Signatory      





 






    A-5  US-DOCS\122118934.6  [Back of Note]    4.50% Senior Note due 2029  Capitalized terms used herein shall have the meanings assigned to them in the  Indenture referred to below unless otherwise indicated.  1. Interest.  Dycom Industries, Inc., a Florida corporation (the “Issuer”),  promises to pay interest on the principal amount of this Note at a rate per annum set forth below  from [_______] until maturity.  The Issuer will pay interest on this Note semi-annually in arrears  on April 15 and October 15 of each year, commencing on October 15, 20215 (each, an “Interest  Payment Date”), or if any such day is not a Business Day, on the next succeeding Business Day.   The Issuer will make each interest payment to the Holder of record of this Note on the  immediately preceding April 1 and October 1 (each, a “Record Date”).  Interest on this Note will  accrue from the most recent date to which interest has been paid or, if no interest has been paid,  from and including April 1, 2021.  The Issuer will pay interest (including post-petition interest in  any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time  to time on demand at the rate then applicable to this Note; it shall pay interest (including post- petition interest in any proceeding under any Bankruptcy Law) on overdue installments of  interest (without regard to any applicable grace periods) from time to time on demand at the rate  then applicable to this Note.  Interest will be computed on the basis of a 360-day year comprised  of twelve 30-day months.   Interest on this Note will accrue at the rate of 4.50% per annum and be payable in  cash.    2. Method of Payment.  The Issuer will pay interest on this Note to the  Person who is the registered Holder of this Note at the close of business on the Record Date  (whether or not a Business Day) next preceding the Interest Payment Date, even if this Note is  cancelled after such record date and on or before such Interest Payment Date, except as provided  in Section 2.12 of the Indenture with respect to defaulted interest.  Payment of interest will be  made at the office or agency of the Issuer maintained for such purpose or, at the option of the  Issuer, payments of interest may be made by check mailed to the Holders at their addresses set  forth in the Note Register of Holders; provided that all payments of principal, premium, if any,  and interest with respect to Notes represented by Global Notes registered in the name of or held  by the Depositary (or its nominee) will be made through the Paying Agent by wire transfer of  immediately available funds to the accounts specified by the registered Holder or Holders  thereof.  Such payment shall be in such coin or currency of the United States of America as at the  time of payment is legal tender for payment of public and private debts.    3. Paying Agent and Registrar.  Initially, U.S. Bank National Association, as  Trustee under the Indenture, will act as Paying Agent and Registrar.  The Issuer may change any                                                    5 For Notes issued on the Issue Date.   





 






    A-6  US-DOCS\122118934.6  Paying Agent or Registrar without notice to the Holders.  The Issuer or any of its Subsidiaries  may act as Paying Agent or Registrar.  4. Indenture.  The Issuer issued the Notes under an Indenture, dated as of  April 1, 2021 (the “Indenture”), among Dycom Industries, Inc., the Guarantors named therein  and the Trustee.  This Note is one of a duly authorized issue of notes of the Issuer designated as  its 4.50% Senior Notes due 2029.  The Issuer shall be entitled to issue Additional Notes pursuant  to Sections 2.01 and 4.09 of the Indenture.  The Initial Notes and any Additional Notes issued  under the Indenture (collectively referred to herein as the “Notes”) shall be treated as a single  class of securities under the Indenture.  The Notes are subject to all terms and provisions in the  Indenture, and Holders are referred to the Indenture for a statement of such terms and provisions.   To the extent any provision of this Note conflicts with the express provisions of the Indenture,  the provisions of the Indenture shall govern and be controlling.  5. Optional Redemption.    (a) At any time prior to April 15, 2024, the Issuer may on one or more  occasions redeem the Notes, in whole or in part, upon notice in accordance with Section 3.03 of  the Indenture, at a redemption price equal to 100% of the principal amount of the Notes  redeemed plus the Applicable Premium as of, plus accrued and unpaid interest, if any, to, but  excluding, the date of redemption (each date on which a redemption occurs, a “Redemption  Date”), subject to the right of Holders of record on the relevant Record Date to receive interest  due on the relevant Interest Payment Date.    (b) On and after April 15, 2024, the Issuer may on one or more occasions  redeem the Notes, in whole or in part, upon notice in accordance with Section 3.03 of the  Indenture, at the applicable redemption price (expressed as percentages of principal amount of  the Notes to be redeemed) set forth below, plus accrued and unpaid interest, if any, to, but  excluding, the applicable Redemption Date, subject to the right of Holders of record on the  relevant Record Date to receive interest due on the relevant Interest Payment Date, if redeemed  during the twelve-month period beginning on April 15 of each of the years indicated below:  Year Percentage     2024 ..............................................................................  102.250%  2025 ..............................................................................  101.125%  2026 and thereafter .......................................................  100.000%    (c) In addition, prior to April 15, 2024, the Issuer may, at its option, and on  one or more occasions, redeem up to 40% of the aggregate principal amount of Notes issued  under the Indenture (including any Additional Notes issued under the Indenture after the Issue  Date) at a redemption price equal to 104.50% of the aggregate principal amount of the Notes  redeemed, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption  Date, subject to the right of Holders of record on the relevant Record Date to receive interest due  on the relevant Interest Payment Date, with funds in an aggregate amount equal to the net cash  





 






    A-7  US-DOCS\122118934.6  proceeds of one or more Equity Offerings of the Issuer; provided that (1) at least 50% of (A) the  aggregate principal amount of Notes originally issued under the Indenture on the Issue Date plus  (B) the aggregate principal amount of any Additional Notes issued under the Indenture after the  Issue Date remains outstanding immediately after the occurrence of each such redemption; and  (2) each such redemption occurs within 180 days of the date of closing of each such Equity  Offering.  (d) In connection with any Change of Control Offer or Asset Sale Offer, if  Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly  tender and do not withdraw such Notes in such Change of Control Offer or Asset Sale Offer and  the Issuer, or any third party making such Change of Control Offer or Asset Sale Offer in lieu of  the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, all of  the Holders will be deemed to have consented to such Change of Control Offer or Asset Sale  Offer and accordingly, the Issuer or such third party will have the right upon not less than 10 nor  more than 60 days’ prior notice (provided that such notice is not given more than 30 days  following such purchase date) to redeem all Notes that remain outstanding following such  purchase at a price equal to the price offered to each other Holder in such Change of Control  Offer or Asset Sale Offer plus, to the extent not included in the Change of Control Offer or Asset  Sale Offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the applicable  Redemption Date subject to the rights of Holders of record on the relevant record date to receive  interest due on the relevant Interest Payment Date.  (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the  provisions of Sections 3.01 through 3.06 of the Indenture.  Notice of any redemption or  purchase, whether in connection with an Equity Offering, other transaction or otherwise, may be  given prior to the completion thereof, and any such notice may, at the Issuer’s discretion, be  subject to one or more conditions precedent.  If a redemption or purchase is subject to  satisfaction of one or more conditions precedent, such notice shall describe each such condition  and, if applicable, shall state that, in the Issuer’s discretion, the Redemption Date or purchase  date may be delayed until such time (including more than 60 days after the date the notice was  sent) as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion)  or such redemption or purchase may not occur and such notice may be rescinded in the event that  any or all such conditions shall not have been satisfied by the Redemption Date or purchase date,  or by the Redemption Date or purchase date as so delayed.  In addition, the Issuer may provide in  such notice that payment of the redemption price or purchase price and performance of the  Issuers’ obligations with respect to such redemption or purchase may be performed by another  Person.    6. Mandatory Redemption. The Issuer shall not be required to make  mandatory redemption or sinking fund payments with respect to the Notes.   7.  Notice of Redemption.  Subject to Sections 3.03 and 3.09 of the  Indenture, notice of redemption will be delivered electronically or mailed by first-class mail at  least 10 days but not more than 60 days before the Redemption Date to each Holder whose Notes  are to be redeemed at such Holder’s registered address or otherwise in accordance with the  Applicable Procedures, except that redemption notices may be delivered more than 60 days prior  





 






    A-8  US-DOCS\122118934.6  to a redemption date if the notice is issued in connection with a conditional redemption or Article  VIII or Article XI of the Indenture.  Notes in denominations larger than $2,000 may be redeemed  in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a  Holder are to be redeemed.  On and after the Redemption Date, interest ceases to accrue on this  Note or portions thereof called for redemption.  8. Offers to Repurchase.  Upon the occurrence of a Change of Control, the  Issuer shall make a Change of Control Offer in accordance with Section 4.14 of the Indenture.   In connection with certain Asset Sales, the Issuer shall make an Asset Sale Offer as and when  provided in accordance with Section 4.10 of the Indenture.  9. Denominations, Transfer, Exchange.  The Notes are in registered form  without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in  excess thereof.  The transfer of Notes may be registered and Notes may be exchanged as  provided in the Indenture.  A Holder may transfer or exchange Notes in accordance with the  Indenture. The registrar and the Trustee may require a Holder to furnish appropriate  endorsements and transfer documents in connection with a transfer of Notes. Holders will be  required to pay all transfer or other similar taxes due on transfer. The Issuer will not be required  to transfer or exchange any Note selected for redemption or tendered (and not withdrawn) for  repurchase in connection with a redemption, Change of Control Offer or an Asset Sale Offer.  The Notes will be issued in registered form, and the registered Holder of a Note will be treated as  the owner of the Note for all purposes.  10. Persons Deemed Owners.  The registered Holder of this Note shall be  treated as its owner for all purposes.  11. Amendment, Supplement and Waiver.  The Indenture, the Guarantees or  the Notes may be amended or supplemented as provided in the Indenture.  12. Defaults and Remedies.  The Events of Default relating to the Notes are  defined in Section 6.01 of the Indenture.  If any Event of Default (other than an Event of Default  of the type specified in clause (6) or (7) of Section 6.01 of the Indenture) occurs and is  continuing under the Indenture, the Trustee or the Holders of at least 30% in principal amount of  the then-outstanding Notes may declare the principal, premium, if any, interest and any other  monetary obligations on all the then-outstanding Notes to be due and payable immediately.   Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) of  Section 6.01 of the Indenture, all outstanding Notes will become due and payable without further  action or notice.  Holders may not enforce the Indenture, the Notes or the Guarantees except as  provided in the Indenture.  Subject to certain limitations, Holders of a majority in aggregate  principal amount of the then-outstanding Notes may direct the Trustee in its exercise of any trust  or power.  The Trustee may withhold from Holders of the Notes notice of any continuing Default  or Event of Default (except a Default or Event of Default relating to the payment of principal,  premium, if any, or interest) if it determines that withholding notice is in their interest.  The  Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to  the Trustee (with a copy to the Issuer; provided that any waiver or rescission under Section 6.04  of the Indenture shall be valid and binding notwithstanding the failure to provide a copy of such  





 






    A-9  US-DOCS\122118934.6  notice to the Issuer) may on behalf of the Holders of all of the Notes waive any existing Default  or Event of Default and its consequences under the Indenture (except a continuing Default or  Event of Default in payment of the principal of, premium, if any, or interest on, any of the Notes  held by a non-consenting Holder) (including in connection with an Asset Sale Offer or a Change  of Control Offer) and rescind any acceleration with respect to the Notes and its consequences  under the Indenture (except if such rescission would conflict with any judgment of a court of  competent jurisdiction).  The Issuer is required to deliver to the Trustee annually a statement  regarding compliance with the Indenture, and the Issuer is required within twenty (20) Business  Days after becoming aware of any Default, to deliver to the Trustee a statement specifying such  Default and what action the Issuer is taking or proposes to take with respect thereto, unless such  Default has been cured.  13. Authentication.  This Note shall not be entitled to any benefit under the  Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of  the Trustee (or an authenticating agent).  14. Governing Law.  THIS NOTE SHALL BE GOVERNED BY, AND  CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF  NEW YORK.  15. CUSIP Numbers and ISINs.  The Issuer has caused CUSIP numbers and  ISINs to be printed on the Notes and the Trustee may use CUSIP numbers and ISINs in notices  of redemption as a convenience to Holders.  No representation is made as to the accuracy of such  numbers either as printed on the Notes or as contained in any notice of redemption and reliance  may be placed only on the other identification numbers placed thereon.  The Issuer will furnish to any Holder upon written request and without charge a  copy of the Indenture.  Requests may be made to the Issuer at the following address:  Dycom Industries, Inc.  11780 US Highway 1, Suite 600  Palm Beach Gardens, FL 33408  Attention:  Chief Financial Officer    





 






    A-10  US-DOCS\122118934.6  ASSIGNMENT FORM  To assign this Note, fill in the form below:  (I) or (we) assign and transfer this Note to:     (Insert assignee’s legal name)     (Insert assignee’s soc. sec. or tax I.D. no.)              (Print or type assignee’s name, address and zip code)  and irrevocably appoint    to transfer this Note on the books of the Issuer.  The agent may substitute another to act for him.  Date:  _____________________  Your Signature:     (Sign exactly as your name appears  on the face of this Note)  Signature Guarantee*:  __________________________________  * Participant in a recognized Signature Guarantee Medallion Program (or other signature  guarantor acceptable to the Trustee).  





 






    A-11  US-DOCS\122118934.6  OPTION OF HOLDER TO ELECT PURCHASE  If you want to elect to have this Note purchased by the Issuer pursuant to  Section 4.10 or 4.14 of the Indenture, check the appropriate box below:  [   ] Section 4.10 [   ] Section 4.14  If you want to elect to have only part of this Note purchased by the Issuer  pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount ($2,000 and any  integral multiple of $1,000 in excess thereof):  $_______________  Date:  _____________________  Your Signature:     (Sign exactly as your name appears  on the face of this Note)  Tax Identification No.:     Signature Guarantee*:  __________________________________  * Participant in a recognized Signature Guarantee Medallion Program (or other signature  guarantor acceptable to the Trustee).  





 






    A-12  US-DOCS\122118934.6  SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*  The initial outstanding principal amount of this Global Note is $__________.    The following exchanges of a part of this Global Note for an interest in another  Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note  for an interest in this Global Note, have been made:    Date of  Exchange  Amount of  decrease  in Principal  Amount of this  Global Note  Amount of increase  in Principal  Amount of this  Global Note  Principal Amount  of  this Global Note  following such  decrease or  increase  Signature of  authorized  signatory  of Trustee or   Registrar                                                __________________  *This schedule should be included only if the Note is issued in global form.  





 






  B-1  US-DOCS\122118934.6  EXHIBIT B  FORM OF CERTIFICATE OF TRANSFER  Dycom Industries, Inc.  11780 US Highway 1, Suite 600  Palm Beach Gardens, FL 33408  Attention:  Chief Financial Officer    U.S. Bank National Association, as Trustee  100 Wall Street, Suite 600  New York, NY 10005  Attention: Global Corporate Trust  Re: 4.50% Senior Notes due 2029  Reference is hereby made to the Indenture, dated as of April 1, 2021 (the  “Indenture”), among Dycom Industries, Inc., a Florida corporation (the “Issuer”), the Guarantors  named therein and the Trustee.  Capitalized terms used but not defined herein shall have the  meanings given to them in the Indenture.  _______________ (the “Transferor”) owns and proposes to transfer the Note[s] or  interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in  such Note[s] or interests (the “Transfer”), to _______________ (the “Transferee”), as further  specified in Annex A hereto.  In connection with the Transfer, the Transferor hereby certifies  that:  [CHECK ALL THAT APPLY]  1. [  ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A  BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE  PURSUANT TO RULE 144A.  The Transfer is being effected pursuant to and in accordance  with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities  Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or  Definitive Note is being transferred to a Person that the Transferor reasonably believes is  purchasing the beneficial interest or Definitive Note for its own account, or for one or more  accounts with respect to which such Person exercises sole investment discretion, and such Person  and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a  transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any  applicable blue sky securities laws of any state of the United States.  2. [  ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A  BENEFICIAL INTEREST IN THE RELEVANT REGULATION S GLOBAL NOTE OR  RELEVANT DEFINITIVE NOTE PURSUANT TO REGULATION S.  The Transfer is being  effected pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S and,  accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a  





 






  B-2  US-DOCS\122118934.6  person in the United States and (x) at the time the buy order was originated, the Transferee was  outside the United States or such Transferor and any Person acting on its behalf reasonably  believed and believes that the Transferee was outside the United States or (y) the transaction was  executed in, on or through the facilities of a designated offshore securities market and neither  such Transferor nor any Person acting on its behalf knows that the transaction was prearranged  with a buyer in the United States, (ii) no directed selling efforts have been made in contravention  of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, (iii) the transaction is not part  of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the  proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not  being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial  Purchaser).  Upon consummation of the proposed transfer in accordance with the terms of the  Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions  on Transfer enumerated in the Indenture and the Securities Act.  3. [  ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE  DELIVERY OF A BENEFICIAL INTEREST IN A DEFINITIVE NOTE PURSUANT TO  ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR  REGULATION S.  The Transfer is being effected in compliance with the transfer restrictions  applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and  pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws  of any state of the United States, and accordingly the Transferor hereby further certifies that  (check one):  (a) [  ] such Transfer is being effected pursuant to and in accordance with  Rule 144 under the Securities Act;  or  (b) [  ] such Transfer is being effected to the Issuer or a subsidiary thereof;  or  (c) [  ] such Transfer is being effected pursuant to an effective registration  statement under the Securities Act and in compliance with the prospectus delivery  requirements of the Securities Act.  4. [  ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A  BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN  UNRESTRICTED DEFINITIVE NOTE.  (a) [  ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The  Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act  and in compliance with the transfer restrictions contained in the Indenture and any applicable  blue sky securities laws of any state of the United States and (ii) the restrictions on transfer  contained in the Indenture and the Private Placement Legend are not required in order to  maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in  accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note  





 






  B-3  US-DOCS\122118934.6  will no longer be subject to the restrictions on transfer enumerated in the Private Placement  Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the  Indenture.  (b) [  ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i)  The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under  the Securities Act and in compliance with the transfer restrictions contained in the Indenture and  any applicable blue sky securities laws of any state of the United States and (ii) the restrictions  on transfer contained in the Indenture and the Private Placement Legend are not required in order  to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer  in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive  Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement  Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the  Indenture.  (c) [  ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.   (i) The Transfer is being effected pursuant to and in compliance with an exemption from the  registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in  compliance with the transfer restrictions contained in the Indenture and any applicable blue sky  securities laws of any State of the United States and (ii) the restrictions on transfer contained in  the Indenture and the Private Placement Legend are not required in order to maintain compliance  with the Securities Act.  Upon consummation of the proposed Transfer in accordance with the  terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to  the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted  Global Notes or Restricted Definitive Notes and in the Indenture.  





 






  B-4  US-DOCS\122118934.6  This certificate and the statements contained herein are made for your benefit and  the benefit of the Issuer.  [Insert Name of Transferor]    By:         Name:    Title:    Dated:  _______________________  





 






  B-5  US-DOCS\122118934.6  ANNEX A TO CERTIFICATE OF TRANSFER  1. The Transferor owns and proposes to transfer the following:  [CHECK ONE OF (a) OR (b)]  (a) [  ] a beneficial interest in the:  (i) [  ] 144A Global Note ([CUSIP: 267475 AD3][ISIN:  US267475AD30]), or  (ii) [  ] Regulation S Global Note ([CUSIP: U26723 AB9][ISIN:  USU26723AB92]), or  (b) [  ] a Restricted Definitive Note.  2. After the Transfer the Transferee will hold:  [CHECK ONE]  (a) [  ] a beneficial interest in the:  (i) [  ] 144A Global Note ([CUSIP: 267475 AD3][ISIN:  US267475AD30]), or  (ii) [  ] Regulation S Global Note ([CUSIP: U26723 AB9][ISIN:  USU26723AB92]), or  (iii) [  ] Unrestricted Global Note ([                              ]); or  (b) [  ] a Restricted Definitive Note; or  (c) [  ] an Unrestricted Definitive Note, in accordance with the terms of the  Indenture.  





 






  C-1  US-DOCS\122118934.6  EXHIBIT C  FORM OF CERTIFICATE OF EXCHANGE  Dycom Industries, Inc.  11780 U.S. Highway 1, Suite 600  Palm Beach Gardens, FL 33408  Attention:  Chief Financial Officer    U.S. Bank National Association, as Trustee  100 Wall Street, Suite 600  New York, NY 10005  Attention: Global Corporate Trust    Re: 4.50% Senior Notes due 2029  Reference is hereby made to the Indenture, dated as of April 1, 2021 (the  “Indenture”), among Dycom Industries, Inc., a Florida corporation (the “Issuer”), the Guarantors  named therein and the Trustee.  Capitalized terms used but not defined herein shall have the  meanings given to them in the Indenture.  ___________ (the “Owner”) owns and proposes to exchange the Note[s] or  interest in such Note[s] specified herein, in the principal amount of $__________ in such Note[s]  or interests (the “Exchange”).  In connection with the Exchange, the Owner hereby certifies that:  1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR  BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED  DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL  NOTE   (a) [  ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST  IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN  UNRESTRICTED GLOBAL NOTE.  In connection with the Exchange of the  Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in  an Unrestricted Global Note in an equal principal amount, the Owner hereby  certifies (i) the beneficial interest is being acquired for the Owner’s own account  without transfer, (ii) such Exchange has been effected in compliance with the  transfer restrictions applicable to the Global Notes and pursuant to and in  accordance with the United States Securities Act of 1933, as amended (the  “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and  the Private Placement Legend are not required in order to maintain compliance  with the Securities Act and (iv) the beneficial interest in an Unrestricted Global  Note is being acquired in compliance with any applicable blue sky securities laws  of any state of the United States.  





 






  C-2  US-DOCS\122118934.6  (b) [  ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST  IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE  NOTE.  In connection with the Exchange of the Owner’s beneficial interest in a  Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby  certifies (i) the Definitive Note is being acquired for the Owner’s own account  without transfer, (ii) such Exchange has been effected in compliance with the  transfer restrictions applicable to the Restricted Global Notes and pursuant to and  in accordance with the Securities Act, (iii) the restrictions on transfer contained in  the Indenture and the Private Placement Legend are not required in order to  maintain compliance with the Securities Act and (iv) the Definitive Note is being  acquired in compliance with any applicable blue sky securities laws of any state  of the United States.  (c) [  ] CHECK IF EXCHANGE IS FROM RESTRICTED  DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED  GLOBAL NOTE.  In connection with the Owner’s Exchange of a Restricted  Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner  hereby certifies (i) the beneficial interest is being acquired for the Owner’s own  account without transfer, (ii) such Exchange has been effected in compliance with  the transfer restrictions applicable to Restricted Definitive Notes and pursuant to  and in accordance with the Securities Act, (iii) the restrictions on transfer  contained in the Indenture and the Private Placement Legend are not required in  order to maintain compliance with the Securities Act and (iv) the beneficial  interest is being acquired in compliance with any applicable blue sky securities  laws of any state of the United States.  (d) [  ] CHECK IF EXCHANGE IS FROM RESTRICTED  DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE.  In connection  with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted  Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is  being acquired for the Owner’s own account without transfer, (ii) such Exchange  has been effected in compliance with the transfer restrictions applicable to  Restricted Definitive Notes and pursuant to and in accordance with the Securities  Act, (iii) the restrictions on transfer contained in the Indenture and the Private  Placement Legend are not required in order to maintain compliance with the  Securities Act and (iv) the Unrestricted Definitive Note is being acquired in  compliance with any applicable blue sky securities laws of any state of the United  States.  2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR  BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED  DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES  (a) [  ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST  IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE.   In connection with the Exchange of the Owner’s beneficial interest in a Restricted  





 






  C-3  US-DOCS\122118934.6  Global Note for a Restricted Definitive Note with an equal principal amount, the  Owner hereby certifies that the Restricted Definitive Note is being acquired for  the Owner’s own account without transfer.  Upon consummation of the proposed  Exchange in accordance with the terms of the Indenture, the Restricted Definitive  Note issued will continue to be subject to the restrictions on transfer enumerated  in the Private Placement Legend printed on the Restricted Definitive Note and in  the Indenture and the Securities Act.  (b) [  ] CHECK IF EXCHANGE IS FROM RESTRICTED  DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED  GLOBAL NOTE.  In connection with the Exchange of the Owner’s Restricted  Definitive Note for a beneficial interest in the [CHECK ONE]  [   ] 144A Global  Note  [   ] Regulation S Global Note, in each case, with an equal principal amount,  the Owner hereby certifies (i) the beneficial interest is being acquired for the  Owner’s own account without transfer and (ii) such Exchange has been effected in  compliance with the transfer restrictions applicable to the Restricted Global Notes  and pursuant to and in accordance with the Securities Act, and in compliance with  any applicable blue sky securities laws of any state of the United States.  Upon  consummation of the proposed Exchange in accordance with the terms of the  Indenture, the beneficial interest issued will be subject to the restrictions on  transfer enumerated in the Private Placement Legend printed on the relevant  Restricted Global Note and in the Indenture and the Securities Act.  This certificate and the statements contained herein are made for your benefit and  the benefit of the Issuer and are dated ______________________.    [Insert Name of Transferor]   By:          Name:     Title:    Dated:  _______________________  





 






  D-1  US-DOCS\122118934.6  EXHIBIT D  [FORM OF SUPPLEMENTAL INDENTURE  TO BE DELIVERED BY SUBSEQUENT GUARANTORS]  Supplemental Indenture (this “Supplemental Indenture”), dated as of __________,  among Dycom Industries, Inc., a Florida corporation (the “Issuer”), __________________ (the  “Guaranteeing Subsidiary”), a subsidiary of the Issuer, and U.S. Bank National Association, as  trustee (the “Trustee”).  W I T N E S S E T H  WHEREAS, each of the Issuer and the Guarantors has heretofore executed and  delivered to the Trustee an Indenture (the “Indenture”), dated as of April 1, 2021, providing for  the issuance of an unlimited aggregate principal amount of 4.50% Senior Notes due 2029 (the  “Notes”);  WHEREAS, the Indenture provides that under certain circumstances the  Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture  pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s  Obligations under the Notes and the Indenture on the terms and conditions set forth herein and  under the Indenture (the “Guarantee”); and  WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized  to execute and deliver this Supplemental Indenture.  NOW THEREFORE, in consideration of the foregoing and for other good and  valuable consideration, the receipt of which is hereby acknowledged, the parties mutually  covenant and agree for the equal and ratable benefit of the Holders as follows:  (1) Capitalized Terms.  Capitalized terms used herein without definition shall  have the meanings assigned to them in the Indenture.  (2) Agreement to Guarantee.  The Guaranteeing Subsidiary hereby agrees,  jointly and severally with all existing Guarantors (if any), to unconditionally guarantee the  Issuer’s obligations under the Notes on the terms and subject to the conditions and limitations set  forth in Article X of the Indenture and to be bound by all other applicable provisions of the  Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor  under the Indenture.  (3) No Recourse Against Others.  No director, officer, employee,  incorporator, member or stockholder of the Guaranteeing Subsidiary shall have any liability for  any obligations of the Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the  Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on,  in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting Notes  waives and releases all such liability.  The waiver and release are part of the consideration for  issuance of the Notes.    





 






  D-2  US-DOCS\122118934.6  (4) Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE  GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS  OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE  PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICTS OF LAW  PRINCIPLES THEREOF TO THE EXTENT THE LAW OF ANOTHER JURISDICTION  WOULD BE APPLIED THEREBY.  (5) Counterparts.  The parties may sign any number of copies of this  Supplemental Indenture.  Each signed copy shall be an original, but all of them together  represent the same agreement.  (6) Effect of Headings.  The Section headings herein are for convenience only  and shall not affect the construction hereof.  (7) The Trustee.  The Trustee shall not be responsible in any manner  whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or  in respect of the recitals contained herein, all of which recitals are made solely by the  Guaranteeing Subsidiary.  





 






  D-3  US-DOCS\122118934.6  IN WITNESS WHEREOF, the parties hereto have caused this Supplemental  Indenture to be duly executed, all as of the date first above written.      [GUARANTEEING SUBSIDIARY]        By:         Name:    Title:      DYCOM INDUSTRIES, INC., as Issuer        By:         Name:    Title:      U.S. BANK NATIONAL ASSOCIATION,  as Trustee      By:         Name:    Title: