exv4w1



 




Exhibit 4.1



 







EXECUTION COPY




CARDTRONICS, INC.



9 1/4% SENIOR SUBORDINATED NOTES DUE 2013



 




Indenture




Dated as of August 12, 2005



 




Wells Fargo Bank, National Association




Trustee



 



 








 









 












CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	   Act Section	 	Indenture Section
	310 (a)(1)
	 	7.10
	  (a)(2)
	 	7.10
	  (a)(3)
	 	N.A.
	  (a)(4)
	 	N.A.
	  (a)(5)
	 	7.10
	  (b)
	 	7.10
	  (c)
	 	N.A.
	311 (a)
	 	7.11
	  (b)
	 	7.11
	  (c)
	 	N.A.
	312 (a)
	 	2.06
	  (b)
	 	14.03
	  (c)
	 	14.03
	313 (a)
	 	7.06
	  (b)(1)
	 	N.A.
	  (b)(2)
	 	7.06, 7.07
	  (c)
	 	7.06, 14.02
	  (d)
	 	7.06
	314 (a)
	 	14.05
	  (b)
	 	N.A.
	  (c)(1)
	 	N.A.
	  (c)(2)
	 	N.A.
	  (c)(3)
	 	N.A.
	  (d)
	 	N.A.
	  (e)
	 	14.05
	  (f)
	 	N.A.
	315 (a)
	 	N.A.
	  (b)
	 	N.A.
	  (c)
	 	N.A.
	  (d)
	 	N.A.
	  (e)
	 	N.A.
	316 (a) (last sentence)
	 	N.A.
	  (a)(1)(A)
	 	N.A.
	  (a)(1)(B)
	 	6.04
	  (a)(2)
	 	N.A.
	  (b)
	 	N.A.








 




			
	* 	 N.A. means not applicable.
	 
	 	This Cross-Reference Table is not part of this Indenture




1









 










	 	 	 
	Trust Indenture	 	 
	   Act Section	 	Indenture Section
	(c)
	 	14.14
	   317(a)(1)
	 	N.A.
	     (a)(2)
	 	N.A.
	     (b)
	 	N.A.
	   318(a)
	 	N.A.
	     (b)
	 	N.A.
	     (c)
	 	14.01






2









 







TABLE OF CONTENTS




	 	 	 
	 	 	Page





ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE




	 	 	 	 	 
	Section 1.01. Definitions

	 	 	1	 
	Section 1.02. Other Definitions

	 	 	27	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act

	 	 	27	 
	Section 1.04. Rules of Construction

	 	 	28	 






ARTICLE TWO

THE NOTES




	 	 	 	 	 
	Section 2.01. Form and Dating

	 	 	28	 
	Section 2.02. Execution and Authentication

	 	 	30	 
	Section 2.03. Methods of Receiving Payments on the Notes

	 	 	30	 
	Section 2.04. Registrar and Paying Agent

	 	 	30	 
	Section 2.05. Paying Agent to Hold Money in Trust

	 	 	31	 
	Section 2.06. Holder Lists

	 	 	31	 
	Section 2.07. Transfer and Exchange

	 	 	31	 
	Section 2.08. Replacement Notes

	 	 	44	 
	Section 2.09. Outstanding Notes

	 	 	44	 
	Section 2.10. Treasury Notes

	 	 	44	 
	Section 2.11. Temporary Notes

	 	 	45	 
	Section 2.12. Cancellation

	 	 	45	 
	Section 2.13. Defaulted Interest

	 	 	45	 
	Section 2.14. CUSIP Numbers

	 	 	45	 






ARTICLE THREE

REDEMPTION AND OFFERS TO

PURCHASE




	 	 	 	 	 
	Section 3.01. Notices to Trustee

	 	 	46	 
	Section 3.02. Selection of Notes to Be Redeemed

	 	 	46	 
	Section 3.03. Notice of Redemption

	 	 	46	 
	Section 3.04. Effect of Notice of Redemption

	 	 	47	 
	Section 3.05. Deposit of Redemption Price

	 	 	47	 
	Section 3.06. Notes Redeemed in Part

	 	 	48	 
	Section 3.07. Optional Redemption

	 	 	48	 
	Section 3.08. Repurchase Offers

	 	 	48	 
	Section 3.09. No Sinking Fund

	 	 	50	 
	 	 	 	 	 





i



 









 








ARTICLE FOUR

COVENANTS




	 	 	 	 	 
	Section 4.01. Payment of Notes

	 	 	50	 
	Section 4.02. Maintenance of Office or Agency

	 	 	50	 
	Section 4.03. Reports

	 	 	51	 
	Section 4.04. Compliance Certificate

	 	 	52	 
	Section 4.05. Taxes

	 	 	52	 
	Section 4.06. Stay, Extension and Usury Laws

	 	 	52	 
	Section 4.07. Restricted Payments

	 	 	53	 
	Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

	 	 	56	 
	Section 4.09. Incurrence of Indebtedness

	 	 	58	 
	Section 4.10. Asset Sales

	 	 	60	 
	Section 4.11. Transactions with Affiliates

	 	 	62	 
	Section 4.12. Liens

	 	 	64	 
	Section 4.13. Business Activities

	 	 	64	 
	Section 4.14. Offer to Repurchase upon a Change of Control

	 	 	64	 
	Section 4.15. Limitation on Senior Subordinated Debt

	 	 	65	 
	Section 4.16. Designation of Restricted and Unrestricted Subsidiaries

	 	 	66	 
	Section 4.17. Payments for Consent

	 	 	67	 
	Section 4.18. Guarantees

	 	 	67	 
	Section 4.19. Limitation on Issuances and Sales of Preferred Stock in Restricted Subsidiaries

	 	 	69	 






ARTICLE FIVE

SUCCESSORS




	 	 	 	 	 
	Section 5.01. Merger, Consolidation or Sale of Assets

	 	 	69	 
	Section 5.02. Successor Corporation Substituted

	 	 	70	 






ARTICLE SIX

DEFAULTS AND REMEDIES




	 	 	 	 	 
	Section 6.01. Events of Default

	 	 	71	 
	Section 6.02. Acceleration

	 	 	72	 
	Section 6.03. Other Remedies

	 	 	73	 
	Section 6.04. Waiver of Past Defaults

	 	 	73	 
	Section 6.05. Control by Majority

	 	 	74	 
	Section 6.06. Limitation on Suits

	 	 	74	 
	Section 6.07. Rights of Holders of Notes to Receive Payment

	 	 	74	 
	Section 6.08. Collection Suit by Trustee

	 	 	75	 
	Section 6.09. Trustee May File Proofs of Claim

	 	 	75	 
	Section 6.10. Priorities

	 	 	75	 
	Section 6.11. Undertaking for Costs

	 	 	76	 






ARTICLE SEVEN

TRUSTEE




	 	 	 	 	 
	Section 7.01. Duties of Trustee

	 	 	76	 






ii










 











	 	 	 	 	 
	Section 7.02. Certain Rights of Trustee

	 	 	77	 
	Section 7.03. Individual Rights of Trustee

	 	 	78	 
	Section 7.04. Trustee’s Disclaimer

	 	 	78	 
	Section 7.05. Notice of Defaults

	 	 	78	 
	Section 7.06. Reports by Trustee to Holders of the Notes

	 	 	78	 
	Section 7.07. Compensation and Indemnity

	 	 	79	 
	Section 7.08. Replacement of Trustee

	 	 	80	 
	Section 7.09. Successor Trustee by Merger, Etc.

	 	 	81	 
	Section 7.10. Eligibility; Disqualification

	 	 	81	 
	Section 7.11. Preferential Collection of Claims Against Company

	 	 	81	 






ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE




	 	 	 	 	 
	Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance

	 	 	81	 
	Section 8.02. Legal Defeasance and Discharge

	 	 	81	 
	Section 8.03. Covenant Defeasance

	 	 	82	 
	Section 8.04. Conditions to Legal or Covenant Defeasance

	 	 	82	 
	Section 8.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions

	 	 	84	 
	Section 8.06. Repayment to the Company

	 	 	84	 
	Section 8.07. Reinstatement

	 	 	85	 






ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER




	 	 	 	 	 
	Section 9.01. Without Consent of Holders of Notes

	 	 	85	 
	Section 9.02. With Consent of Holders of Notes

	 	 	86	 
	Section 9.03. Compliance with Trust Indenture Act

	 	 	88	 
	Section 9.04. Revocation and Effect of Consents

	 	 	88	 
	Section 9.05. Notation on or Exchange of Notes

	 	 	88	 
	Section 9.06. Trustee to Sign Amendments, Etc.

	 	 	88	 






ARTICLE TEN

SATISFACTION AND DISCHARGE




	 	 	 	 	 
	Section 10.01. Satisfaction and Discharge

	 	 	89	 
	Section 10.02. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions

	 	 	90	 
	Section 10.03. Repayment to the Company

	 	 	90	 
	Section 10.04. Survival

	 	 	91	 






ARTICLE ELEVEN

SUBORDINATION OF NOTES




	 	 	 	 	 
	Section 11.01. Agreement to Subordinate

	 	 	91	 
	Section 11.02. Liquidation; Dissolution; Bankruptcy

	 	 	91	 
	Section 11.03. Default on Designated Senior Debt

	 	 	91	 






iii




 









 








	 	 	 	 	 
	Section 11.04. Acceleration of Securities

	 	 	93	 
	Section 11.05. When Distribution Must Be Paid Over

	 	 	93	 
	Section 11.06. Notice by the Company

	 	 	93	 
	Section 11.07. Subrogation

	 	 	93	 
	Section 11.08. Relative Rights

	 	 	94	 
	Section 11.09. Subordination May Not Be Impaired by the Company

	 	 	94	 
	Section 11.10. Distribution or Notice to Representative

	 	 	94	 
	Section 11.11. Rights of Trustee and Paying Agent

	 	 	94	 
	Section 11.12. Authorization to Effect Subordination

	 	 	95	 






ARTICLE TWELVE

NOTE GUARANTEES




	 	 	 	 	 
	Section 12.01. Guarantee

	 	 	95	 
	Section 12.02. Limitation on Guarantor Liability

	 	 	96	 
	Section 12.03. Note Guarantees under Indenture

	 	 	97	 
	Section 12.04. Guarantors May Consolidate, Etc., on Certain Terms

	 	 	97	 
	Section 12.05. Release of Guarantor

	 	 	98	 






ARTICLE THIRTEEN

SUBORDINATION OF NOTE GUARANTEES




	 	 	 	 	 
	Section 13.01. Agreement To Subordinate

	 	 	98	 
	Section 13.02. Liquidation, Dissolution, Bankruptcy

	 	 	98	 
	Section 13.03. Default on Designated Senior Debt of Guarantor

	 	 	99	 
	Section 13.04. Demand for Payment

	 	 	100	 
	Section 13.05. When Distribution Must Be Paid Over

	 	 	100	 
	Section 13.06. Notice by the Guarantors

	 	 	101	 
	Section 13.07. Subrogation

	 	 	101	 
	Section 13.08. Relative Rights

	 	 	101	 
	Section 13.09. Subordination May Not Be Impaired by Guarantor

	 	 	101	 
	Section 13.10. Distribution or Notice to Representative

	 	 	102	 
	Section 13.11. Rights of Trustee and Paying Agent

	 	 	102	 
	Section 13.12. Authorization to Effect Subordination

	 	 	102	 
	Section 13.13. Reliance by Holders of Senior Debt of Guarantors on Subordination Provisions

	 	 	103	 






ARTICLE FOURTEEN

MISCELLANEOUS




	 	 	 	 	 
	Section 14.01. Trust Indenture Act Controls

	 	 	103	 
	Section 14.02. Notices

	 	 	103	 
	Section 14.03. Communication by Holders of Notes with Other Holders of Notes

	 	 	104	 
	Section 14.04. Certificate and Opinion as to Conditions Precedent

	 	 	104	 
	Section 14.05. Statements Required in Certificate or Opinion

	 	 	105	 
	Section 14.06. Rules by Trustee and Agents

	 	 	105	 
	Section 14.07. No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	105	 
	Section 14.08. Governing Law

	 	 	106	 






iv




 









 









	 	 	 	 	 
	Section 14.09. Consent to Jurisdiction

	 	 	106	 
	Section 14.10. No Adverse Interpretation of Other Agreements

	 	 	106	 
	Section 14.11. Successors

	 	 	106	 
	Section 14.12. Severability

	 	 	106	 
	Section 14.13. Counterpart Originals

	 	 	106	 
	Section 14.14. Acts of Holders

	 	 	106	 
	Section 14.15. Benefit of Indenture

	 	 	108	 
	Section 14.16. Table of Contents, Headings, Etc.

	 	 	108	 






v

 









 









	 	 	 
	 	 	EXHIBITS
	 	 	 
	Exhibit A

	 	FORM OF NOTE
	 	 	 
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	 	 	 
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	 	 	 
	Exhibit D

	 	FORM OF NOTATION OF GUARANTEE
	 	 	 
	Exhibit E

	 	FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS







vi

 








 








          INDENTURE dated as of August 12, 2005, among Cardtronics, Inc., a Delaware corporation,
the initial Guarantors (as defined below) listed on the signature pages hereto and Wells Fargo
National Bank, National Association, a nationally chartered banking association, as trustee.




          The Company (as defined below) has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its 9 1/4% Senior Subordinated Notes due
2013 to be issued in one or more series as provided in this Indenture. Each of the initial
Guarantors has duly authorized the execution and delivery of this Indenture to provide for a
guarantee of the Notes and certain of the Company’s obligations under this Indenture. All things
necessary to make this Indenture a valid agreement of the Company and the initial Guarantors, in
accordance with its terms, have been done.




          The Company, the Guarantors and the Trustee (as defined below) agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as defined below) of
the Company’s 9 1/4% Senior Subordinated Notes due 2013:




ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01. Definitions.




          “144A Global Note” means a global note substantially in the form of Exhibit A 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 shall be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.




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




          “Additional
Notes” means an unlimited maximum aggregate principal amount of Notes (other than
the Notes issued on the date hereof) issued under this Indenture in accordance with Sections 2.02
and 4.09.




          ‘‘Applicable
Premium’’means, with respect to a Note at any date of redemption, the greater of
(1) 1.0% of the principal amount of such Note and (2) the excess of (A) the present value at such
date of redemption of (i) the redemption price of such Note at August 15, 2009 (such redemption
price as described in Section 3.07) plus (ii) all remaining required interest payments due on such
Note through August 15, 2009 (excluding accrued but unpaid interest to the date of redemption),
computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
principal amount of such Note.




          “Affiliate” of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of this definition,
‘‘control,’’ as used with respect to any Person, will mean the possession, directly

1









 








or indirectly,of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes
of this definition, the terms ‘‘controlling,’’ ‘‘controlled by’’ and ‘‘under common control with’’
will have correlative meanings.




          “Agent” means any Registrar or Paying Agent.




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




          ‘‘Asset Sale’’ means:




          (1) the sale, lease, conveyance or other disposition of any assets, other than a transaction
governed by the provisions of Section 4.14 and/or the provisions of Section 5.01; and




          (2) the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the
sale by the Company or any Restricted Subsidiary thereof of Equity Interests in any of its
Subsidiaries (other than directors’ qualifying shares and shares issued to foreign nationals to the
extent required by applicable law).




     Notwithstanding the preceding, the following items will be deemed not to be Asset Sales:




          (1) any single transaction or series of related transactions that involves assets or Equity
Interests having a Fair Market Value of less than $1.0 million;




          (2) a transfer of assets or Equity Interests between or among the Company and its Restricted
Subsidiaries;




          (3) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to another Restricted Subsidiary;




          (4) the sale or lease of equipment, inventory, accounts receivable or other assets in the
ordinary course of business;




          (5) the sale or other disposition of Cash Equivalents;




          (6) dispositions of accounts receivable in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;




          (7) a Restricted Payment that is permitted by Section 4.07 and any Permitted Investments;




          (8) any sale or disposition of any property or equipment that has become damaged, worn out, or
obsolete; and

2









 









          (9) the creation of a Lien not prohibited by the Indenture.




          “Bankruptcy Law” means title 11 of the United States Code or any similar federal or state law
for the relief of debtors.




          “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular ‘‘person’’
(as that term is used in Section 13(d)(3) of the Exchange Act), such ‘‘person’’ will be deemed to
have beneficial ownership of all securities that such ‘‘person’’ has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms ‘‘Beneficial Owners’’,
‘‘Beneficially Owns’’ and ‘‘Beneficially Owned’’ will have a corresponding meaning.




          “Board of Directors” means:




          (1) with respect to a corporation, the board of directors of the corporation or, except in the
context of the definitions of ‘‘Change of Control’’ and ‘‘Continuing Directors,’’ a duly authorized
committee thereof ;




          (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership; and




          (3) with respect to any other Person, the board or committee of such Person serving a similar
function.




          “Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors of the Company and to be in full
force and effect on the date of such certification.




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




          “Business Day” means any day other than a Legal Holiday.




          ‘‘Capital 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 that time be required to be
capitalized on a balance sheet in accordance with GAAP.




          ‘‘Capital Stock’’ means:




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




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




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




3









 








          (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.




          ‘‘Cash Equivalents’’ means:




          (1) United States dollars, or in the case of a Subsidiary other than a Domestic Subsidiary,
such local currencies held by it in the ordinary course of business;




          (2) securities issued or directly and fully guaranteed or insured by the United States
government, or any member state of the European Union in which the Company or any Subsidiary
operates or anticipates operating within the 12 months, or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in support thereof)
maturing, unless such securities are deposited to defease any Indebtedness, not more than one year
from the date of acquisition;




          (3) certificates of deposit and eurodollar time deposits with maturities of six months 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 commercial bank having capital and surplus
in excess of $500.0 million and a rating at the time of acquisition thereof of P-1 or better from
Moody’s Investors Service, Inc. or A-1 or better from Standard & Poor’s Rating Services;




          (4) repurchase obligations with a term of not more than seven days for underlying securities
of the types described in clauses (2) and (3) above entered into with any financial institution
meeting the qualifications specified in clause (3) above;




          (5) commercial paper having the highest rating obtainable from Moody’s Investors Service, Inc.
or Standard & Poor’s Rating Services and in each case maturing within one year after the date of
acquisition;




          (6) securities issued and fully guaranteed by any state, commonwealth or territory of the
United States of America, or any member state of the European Union in which the Company or any
Subsidiary operates or anticipates operating within the next 12 months, or by any political
subdivision or taxing authority thereof, rated at least ‘‘A’’ by Moody’s Investors Service, Inc. or
Standard & Poor’s Rating Services and having maturities of not more than six months from the date
of acquisition;




          (7) in the case of any Restricted Subsidiary located in a country that is outside the United
States and the European Union (in which the Company or its Restricted Subsidiary is operating or
anticipates operating within the next 12 months), any substantially similar investment to the kinds
described in clauses (1) through (6) of this definition obtained in the ordinary course of business
and rated the lower of (i) at least P-1 by Moody’s or A-1 by S&P or the equivalent thereof and (ii)
the highest ranking obtainable in the applicable jurisdiction; and




          (8) money market funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (1) through (6) of this definition.




          ‘‘Change of Control’’ means the occurrence of any of the following:




4









 








          (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related transactions, of all or substantially
all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole,
to any ‘‘person’’ (as that term is used in Section 13(d)(3) of the Exchange Act), other than to any
of the Principals or Related Parties;




          (2) the adoption of a plan relating to the liquidation or dissolution of the Company;




          (3) prior to the first public offering of Common Stock of the Company, the Principals or the
Related Parties cease to be the ultimate Beneficial Owners, directly or indirectly, of a majority
in the aggregate of the total voting power of the Voting Stock of the Company, on a fully diluted
basis, whether as a result of issuance of securities of the Company, any merger, consolidation,
liquidation or dissolution of the Company or a Parent, or any direct or indirect transfer of
securities by the Company, or otherwise (for the avoidance of doubt, pro rata distributions in kind
of Equity Interests of the Company by any Principal to its general and/or limited partners will be
disregarded for this clause (3));




          (4) on and following the first public offering of Common Stock of the Company, any ‘‘person’’
or ‘‘group’’ (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
any of the Principals or Related Parties, becomes the ultimate Beneficial Owner, directly or
indirectly, of 50% or more of the voting power of the Voting Stock of the Company;




          (5) the first day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors; or




          (6) the Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction
in which any of the outstanding Voting Stock of the Company or such other Person is converted into
or exchanged for cash, securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance), and any transaction where
immediately after such transaction, no ‘‘person’’ or ‘‘group’’ (as such terms are used in Section
13(d) and 14(d) of the Exchange Act), becomes, directly or indirectly, the ultimate Beneficial
Owner of 50% or more of the voting power of the Voting Stock of the surviving or transferee Person.




          “Clearstream” means Clearstream Banking S.A. and any successor thereto.




          “Company” means Cardtronics, Inc., a Delaware corporation, until a successor replaces it
pursuant to Article Five and thereafter means the successor.




          ‘‘Commission’’ means the U.S. Securities and Exchange Commission.



5









 









          ‘‘Common Stock’’ means, with respect to any Person, any Capital Stock (other than Preferred
Stock) of such Person, whether outstanding on the Issue Date or issued thereafter.




          ‘‘Consolidated Cash Flow’’ means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:




          (1) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing
such Consolidated Net Income; plus




          (2) Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the
extent that any such Fixed Charges were deducted in computing such Consolidated Net Income; plus




          (3) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses
(excluding any such non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Restricted Subsidiaries for such period to the extent that
such depreciation, amortization and other noncash expenses were deducted in computing such
Consolidated Net Income; minus




          (4) non-cash items increasing such Consolidated Net Income for such period, other than the
accrual of revenue consistent with past practice;




in each case, on a consolidated basis and determined in accordance with GAAP.




          Solely for the purpose of determining the amount available for Restricted Payments under
Section 4.07, notwithstanding the preceding, the provision for taxes based on the income or profits
of, the Fixed Charges of and the depreciation and amortization and other non-cash expenses of, a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company (A) in the same proportion that the Net Income of such
Restricted Subsidiary was added to compute such Consolidated Net Income of the Company and (B) only
to the extent that a corresponding amount would be permitted at the date of determination to be
dividended or distributed to the Company by such Restricted Subsidiary without prior governmental
approval (that has not been obtained), and without direct or indirect restriction pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules
and governmental regulations applicable to that Subsidiary or its stockholders.




          ‘‘Consolidated Net Assets’’ of any Person means, as of any date, the amount which in
accordance with GAAP, would be set forth under the caption ‘‘Total Assets’’ (or any like caption)
on a consolidated balance sheet of such Person and its Restricted Subsidiaries, as of the end of
the most recently ended fiscal quarter for which internal financial statements are available, less
current liabilities; provided that, for purposes of determining Consolidated Net Assets, the principal amount of any intercompany Indebtedness that would otherwise be included
in the definition of ‘‘current liabilities’’ under GAAP, will not be so included to the extent that

6









 








such intercompany Indebtedness is expressly subordinated by its terms to the Indebtedness evidenced
by the Notes and the Guarantees.




          ‘‘Consolidated Net Income’’ means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided that:




          (1) the Net Income (or loss) of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting will be included only to the extent of the amount
of dividends or distributions or other payments that are actually paid in cash (or to the extent
converted into cash) to the specified Person or a Restricted Subsidiary thereof;




          (2) Solely for the purpose of determining the amount available for Restricted Payments under
Section 4.07, the Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that
Net Income is not at the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its equity holders, unless such restriction has been
waived: provided that Consolidated Net Income for such Restricted Subsidiary will be increased by
the amount of dividends or distributions or other payments that are actually paid in cash (or to
the extent converted into cash) to such Restricted Subsidiary in respect to such period, to the
extent not already included therein;




          (3) the Net Income of any Person acquired during the specified period for any period prior to
the date of such acquisition will be excluded;




          (4) the cumulative effect of a change in accounting principles will be excluded;




          (5) the amortization or write off of fees and expenses incurred in connection with the
acquisition or integration of a Permitted Business or assets used in a Permitted Business will be
excluded;




          (6) any net after tax gain (or loss) realized upon the sale or other disposition of any assets
of the Company, its Consolidated Subsidiaries or any other Person (including pursuant to any
sale-and-leaseback arrangement) which is not sold or otherwise disposed of in the ordinary course
of business and any net after tax gain (or loss) realized upon the sale or other disposition of
any Capital Stock of any Person will be excluded;




          (7) extraordinary gains or losses will be excluded;




          (8) any non-cash compensation charge or expense realized from grants of stock, stock
appreciation or similar rights, stock option or other rights to officers, directors and employees
or the Company or any of its Restricted Subsidiaries will be excluded; and




          (9) any unusual, nonoperating or nonrecurring gain, loss, charge or write-down of assets will
be excluded.




7









 








          ‘‘Continuing Directors’’ means, as of any date of determination, any member of the Board of
Directors of the Company who:




          (1) was a member of such Board of Directors on the Issue Date; or




          (2) was nominated for election or elected to such Board of Directors (i) with the approval of
a majority of the Continuing Directors who were members of such Board of Directors at the time of
such nomination or election or (ii) the nominating committee of the Board of Directors so long as
it consists of Continuing Directors appointed to serve on the nominating committee in accordance
with the First Amended and Restated Investors Agreement dated February 10, 2005.




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




          ‘‘Credit Agreement’’ means that certain Third Amended and Restated First Lien Credit
Agreement, dated as of May 17, 2005, by and among the Company and the other lenders named therein,
providing for up to $30 million in term loan borrowings and up to $150 million of revolving credit
borrowings, including any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended, restated, modified,
renewed, refunded, replaced, restructured, increased, supplemented or refinanced in whole or in
part from time to time, regardless of whether such amendment, restatement, modification, renewal,
refunding, replacement, restructuring, increase, supplement or refinancing is with the same
financial institutions or otherwise.




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




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




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




          “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.07, substantially in the form of Exhibit A, except that
such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.




          “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.04 as the Depositary with respect to the
 


8










 







Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.




          ‘‘Designated Non-Cash Consideration’’ means the Fair Market Value of non-cash consideration
received by the Company or one of its Restricted Subsidiaries 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 such Designated Non-Cash Consideration.




          “Designated Senior Debt” means:




          (1) any Indebtedness outstanding under the Credit Agreement; and




          (2) to the extent permitted under the Credit Agreement, any other Senior Debt permitted under
the Indenture the amount of which is $25.0 million or more and that has been designated by the
Company as “Designated Senior Debt.”




          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 123 days after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not
repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the provisions of Section 4.07. The term ‘‘Disqualified Stock’’ will also
include any options, warrants or other rights that are convertible into Disqualified Stock or that
are redeemable at the option of the holder, or required to be redeemed, prior to the date that is
one year after the date on which the Notes mature. For the avoidance of doubt, the existing
Preferred Stock is not Disqualified Stock.




          “Domestic Subsidiary” means any Restricted Subsidiary of the Company other than a Restricted
Subsidiary that is (1) a ‘‘controlled foreign corporation’’ under Section 957 of the Internal
Revenue Code (a) whose primary operating assets are located outside the United States and (b) that
is not subject to tax under Section 882(a) of the Internal Revenue Code of the United States
because of a trade or business within the United States or (2) a Subsidiary of an entity described
in the preceding clause (1).




          ‘‘Equity Offering’’ means any public or private placement of Capital Stock (other than
Disqualified Stock) of the Company (other than pursuant to a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee benefit plan of the Company) to
any Person other than any Subsidiary thereof.




9









 








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




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




          ‘‘European Union’’ means the European Union or any successor thereto as constituted on the
date of determination.




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




          “Exchange Notes” means the Notes issued in the Exchange Offer in accordance with Section
2.07(f).




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




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




          ‘‘Existing Indebtedness’’ means the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement or under the Notes and
the related Note Guarantees) in existence on the Issue Date after giving effect to the application
of the proceeds of (1) the Notes and (2) any borrowings made under the Credit Agreement on the
Issue Date, until such amounts are repaid.




          ‘‘Existing Preferred Stock’’ means the Company’s Series B Convertible Preferred Stock.




          ‘‘Fair Market Value’’ means the price that would be paid in an arm’s-length transaction
between an informed and willing seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy, as determined in good faith by the Board of Directors of the
Company, whose determination, unless otherwise specified below, will be conclusive if evidenced by
a Board Resolution.




          Notwithstanding the foregoing, (1) the Board of Directors’ determination of Fair Market Value
must be evidenced by a Board Resolution attached to an Officers’ Certificate delivered to the
Trustee if the Fair Market Value exceeds $5.0 million and (2) the Board of Directors’ determination
of Fair Market Value must be based upon an opinion or appraisal issued by an accounting, appraisal
or investment banking firm of national standing if the Fair Market Value exceeds $25.0 million.




          ‘‘Fixed Charges’’ means, with respect to any specified Person for any period, the sum, without
duplication, of:




          (1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued, excluding amortization of debt issuance


10









 








costs and the expensing of any financing fees, but including original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, and net of the effect of all
payments made or received pursuant to Hedging Obligations; plus




          (2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus




          (3) any interest expense on Indebtedness of another Person that is Guaranteed by such Person
or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its
Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus




          (4) all dividends, whether paid or accrued and whether or not in cash, on any series of
Disqualified Stock of such Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock)
of the Company or to the Company or a Restricted Subsidiary of the Company, in each case, on a
consolidated basis and in accordance with GAAP.




          ‘‘Fixed Charge Coverage Ratio’’ means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness or issues, repurchases or
redeems Preferred Stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the ‘‘Calculation Date’’), then the Fixed
Charge Coverage Ratio will be calculated giving pro forma effect to such Incurrence, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Preferred
Stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of such
period.




          In addition, for purposes of calculating the Fixed Charge Coverage Ratio:




          (1) acquisitions and dispositions of business entities or property and assets constituting a
division or line of business of any Person that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or consolidations, during the four-quarter
reference period or subsequent to such reference period and on or prior to the Calculation Date
will be given pro forma effect as if they had occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period will be calculated on a pro
forma basis, but without giving effect to clause (3) of the proviso set forth in the definition of
Consolidated Net Income;




          (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, will be excluded;




          (3) the Fixed Charges attributable to discontinued operations, as determined in accordance
with GAAP will be excluded, but only to the extent that the obligations giving rise to

11









 








such Fixed Charges will not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date;




          (4) consolidated interest expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a floating interest rate will
be computed as if the average rate in effect from the beginning of the applicable period to the
Calculation Date (taking into account any interest rate option, swap, cap or similar agreement
applicable to such Indebtedness if such agreement has a remaining term in excess of 12 months or,
if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate
for the entire period; and




          (5) if any Indebtedness is incurred under a revolving credit facility and is being given pro
forma effect in such calculation, the interest on such Indebtedness shall be calculated based on
the average daily balance of such Indebtedness for the four fiscal quarters subject to the pro
forma calculation to the extent that such Indebtedness was incurred solely for working capital
purposes.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and
in the statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.




          “Global Note Legend” means the legend set forth in Section 2.07(g)(ii), 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, issued in accordance
with Section 2.01 or Section 2.07.




          “Government Securities” means securities that are direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged.




          “Guarantee” means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another
Person.




          ‘‘Guarantors’’ means:




          (1) the Initial Guarantors; and




          (2) any other subsidiary that executes a Note Guarantee in accordance with the provisions of
the Indenture;

12









 






and their respective successors and assigns until released from their obligations under their Note
Guarantees and the Indenture in accordance with the terms of the Indenture.




          ‘‘Hedging Obligations’’ means, with respect to any specified Person, the obligations of such
Person under:




          (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to interest rates;




          (2) commodity swap agreements, commodity option agreements, forward contracts and other
agreements or arrangements with respect to commodity prices; and




          (3) foreign exchange contracts, currency swap agreements and other agreements or arrangements
with respect to foreign currency exchange rates.




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




          ‘‘Immaterial Subsidiary’’ means, as of any date of determination, any Restricted Subsidiary
whose total assets as of the most recently completed fiscal quarter were less than $1.0 million and
whose total revenues for the most recently completed 12-month fiscal period did not exceed $1.0
million; provided that a Restricted Subsidiary will not be deemed to be an Immaterial Subsidiary if
(1) such Restricted Subsidiary directly or indirectly guarantees any Indebtedness of the Company or
any other Subsidiary or (2) either the total assets or total revenues of such Restricted Subsidiary
exceeds the amount set forth above.




          “Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, guarantee or
otherwise become directly or indirectly liable for or with respect to, or become responsible for,
the payment of, contingently or otherwise, such Indebtedness (and ‘‘Incurrence’’ and ‘‘Incurred’’
will have meanings correlative to the foregoing); provided that (1) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Company shall be deemed to
be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the
Company and (2) neither the accrual of interest nor the accretion of original issue discount nor
the payment of interest in the form of additional Indebtedness with the same terms and the payment
of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same
class of Disqualified Stock or Preferred Stock (to the extent provided for when the Indebtedness or
Disqualified Stock or Preferred Stock on which such interest or dividend is paid was originally
issued) will be considered an Incurrence of Indebtedness; provided that, in each case, the amount
thereof is for all other purposes included in the Fixed Charges and Indebtedness of the Company or
its Restricted Subsidiary as accrued.




          ‘‘Indebtedness’’ means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:




          (1) in respect of borrowed money;




          (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);




13









 








          (3) in respect of banker’s acceptances;




          (4) in respect of Capital Lease Obligations;




          (5) in respect of the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade payable;




          (6) representing Hedging Obligations;




          (7) representing Disqualified Stock valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends;




          (8) in the case of a Subsidiary of such Person, representing Preferred Stock valued at greater
of its voluntary or involuntary maximum fixed repurchase price plus accrued dividends.




          In addition, the term ‘‘Indebtedness’’ includes (x) all Indebtedness of others secured by a
Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the
specified Person), provided that the amount of such Indebtedness will be the lesser of (A) the Fair
Market Value of such asset at such date of determination and (B) the amount of such Indebtedness,
(y) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness
of any other Person, and (z) Preferred Stock issued by any Restricted Subsidiary. For purposes
hereof, the ‘‘maximum fixed repurchase price’’ of any Disqualified Stock or Preferred Stock which
does not have a fixed repurchase price will be calculated in accordance with the terms of such
Disqualified Stock or Preferred Stock, as applicable, as if such Disqualified Stock or Preferred
Stock were repurchased on any date on which Indebtedness will be required to be determined pursuant
to the Indenture.




          The amount of any Indebtedness outstanding as of any date will be the outstanding balance at
such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation, and will be:




          (1) the accreted value thereof, in the case of any Indebtedness issued with original issue
discount; and




          (2) the principal amount thereof, together with any interest thereon that is more than 30 days
past due, in the case of any other Indebtedness.




Notwithstanding the foregoing, the following items of Indebtedness will be permitted:




          (1) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business, provided, however,
that such Indebtedness is extinguished within five Business Days of its Incurrence;




14









 








          (2) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
constituting reimbursement obligations with respect to letters of credit in respect of workers’
compensation claims or self-insurance obligations or bid, performance or surety bonds (in each
case, other than for an obligation for borrowed money);




          (3) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
constituting reimbursement obligations with respect to letters of credit issued in the ordinary
course of business; provided that, upon the drawing of such letters of credit or in the Incurrence
of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or
Incurrence;




          (4) the Incurrence by the Company of Indebtedness to the extent that the net proceeds thereof
are promptly deposited to defease or to satisfy and discharge the Notes;




          (5) any Indebtedness which has been defeased in accordance with GAAP; and




          (6) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
arising from agreements providing for indemnification, adjustment of purchase price or similar
obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in
any case Incurred in connection with the disposition of any business, assets or Restricted
Subsidiary of the Company (other than Guarantees of Indebtedness Incurred by any Person acquiring
all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing
such acquisition), so long as the amount so indemnified or otherwise Incurred does not exceed the
gross proceeds actually received by the Company or any Restricted Subsidiary thereof in connection
with such disposition.




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




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




          ‘‘Initial Guarantors’’ means all of the Domestic Subsidiaries of the Company.




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




          ‘‘Investment Grade Rating’’ means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and a rating equal to or higher than BBB- (or the equivalent) by Standard and Poor’s, in
each case with stable or better outlook; or, if ratings by either of Moody’s or Standard and Poor’s
are not available, an equivalent rating with stable or better outlook by another Rating Agency.




          ‘‘Investments’’ means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the form of loans or other extensions of credit
(including Guarantees), advances, capital contributions (by means of any


15









 






transfer of cash or other property to others or any payment for property or services for the
account or use of others), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.




          If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company that is a Guarantor
such that, after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company and a Guarantor, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the Fair Market Value of the
Investment in such Subsidiary not sold or disposed of. The acquisition by the Company or any
Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be
deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an
amount equal to the Fair Market Value of the Investment held by the acquired Person in such third
Person.




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




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed.




          “Legended Regulation S Global Note” means a Global Note in the form of Exhibit A
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 Notes initially sold in reliance on Rule 903 of Regulation S.




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




          ‘‘Lien’’ means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.




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




          ‘‘Net Income’’ means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however:




16









 








          (1) any gain (or loss), together with any related provision for taxes on such gain (or loss),
realized in connection with: (a) any sale of assets outside the ordinary course of business of such
Person; or (b) the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and




          (2) any extraordinary gain (or loss), together with any related provision for taxes on such
extraordinary gain (or loss).




          ‘‘Net Proceeds’’ means the aggregate cash proceeds, including payments in respect of deferred
payment obligations (to the extent corresponding to the principal, but not the interest component,
thereof) received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of




          (1) the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting, investment banking and brokerage fees, and sales commissions, and any relocation
expenses incurred as a result thereof,




          (2) taxes paid or payable as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements,




          (3) amounts required to be applied to the repayment of Indebtedness or other liabilities,
secured by a Lien on the asset or assets that were the subject of such Asset Sale, or is required
to be paid as a result of such sale,




          (4) any reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP,




          (5) in the case of any Asset Sale by a Restricted Subsidiary of the Company, payments to
holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity
Interests held by the Company or any Restricted Subsidiary thereof) to the extent that such payment
is required to permit the distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Company or any Restricted Subsidiary thereof; and




          (6) appropriate amounts to be provided by the Company or its Restricted Subsidiaries as a
reserve against liabilities associated with such Asset Sale, including, without limitation, pension
and other post employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale, all as
determined in accordance with GAAP; provided that (a) excess amounts set aside for payment of taxes
pursuant to clause (2) above remaining after such taxes have been paid in full or the statute of
limitations therefor has expired and (b) amounts initially held in reserve pursuant to clause (6)
no longer so held, will, in the case of each of subclause (a) and (b), at that time become Net
Proceeds.




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




17









 








          “Note Guarantee” means a Guarantee of the Notes pursuant to this Indenture.




          “Notes” means the 9 1/4% Senior Subordinated Notes due 2013 of the Company issued on the date
hereof and any Additional Notes, including any Exchange Notes. The Notes and the Additional Notes
(including any Exchange Notes), if any, shall be treated as a single class for all purposes under
this Indenture.




          “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.




          “Offering Memorandum” means the offering memorandum, dated August 3, 2005, relating to the
Company’s 9 1/4% Senior Subordinated Notes due 2013.




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




          “Officers’ Certificate” means a certificate signed on behalf of the Company by at least two
Officers of the Company, one of whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of the Company, that meets the
requirements of the Indenture.




          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee (who may be counsel to or an employee of the Company) that meets the requirements of the
Indenture.




          “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 Business’’ means any business conducted or proposed to be conducted (as described
in the offering memorandum) by the Company and its Restricted Subsidiaries on the Issue Date and
other businesses reasonably related or ancillary thereto.




          ‘‘Permitted Investments’’ means:




          (1) any Investment in the Company or in a Restricted Subsidiary of the Company;




          (2) any Investment in Cash Equivalents;




          (3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if
as a result of such Investment:




          (a) such Person becomes a Restricted Subsidiary of the Company; or




18









 








(b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary
of the Company;




          (4) any Investment made as a result of the receipt of non-cash consideration from an Asset
Sale that was made pursuant to and in compliance with the provisions of Section 4.10;




          (5) Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any
such agreements previously made for such purposes), and not for speculative purposes, and that do
not increase the Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of
fees, indemnifies and compensation payable thereunder;




          (6) stock, obligations or securities received in satisfaction of judgments;




          (7) advances to customers or suppliers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries and endorsements for collection or deposit
arising in the ordinary course of business;




          (8) commission, payroll, travel and similar advances to officers and employees of the Company
or any of its Restricted Subsidiaries that are expected at the time of such advance ultimately to
be recorded as an expense in conformity with GAAP;




          (9) Investments in any Person received in settlement of debts created in the ordinary course
of business and owing to the Company or any of its Subsidiaries or in satisfaction of judgments or
pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of
any debtor;




          (10) Investments existing on the Issue Date;




          (11) endorsements of negotiable instruments and documents in the ordinary course of business;




          (12) acquisitions of assets, Equity Interests or other securities by the Company for
consideration consisting of Equity Interests (other than Disqualified Stock) of the Company;




          (13) Investments in the Notes;




          (14) Investments in a joint venture engaged in a Permitted Business in an amount, together
with any other amount under this clause (14), not to exceed 7.5% of the Company’s Consolidated Net
Assets; and




          (15) other Investments in any Person (provided that any such Person is not an Affiliate of the
Company or is an Affiliate of the Company solely because the Company, directly or indirectly, owns
Equity Interests in, or controls, such Person) having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to




19









 







subsequent changes in value), when taken together with all other Investments made pursuant to
this clause (15) since the Issue Date, not to exceed $10.0 million.




          “Permitted Junior Securities” means:




          (1) Equity Interests in the Company or any Guarantor or any other business entity provided for
by a plan or reorganization; and




          (2) debt securities of the Company or any Guarantor or any other business entity provided for
by a plan of reorganization that are subordinated to all Senior Debt and any debt securities issued
in exchange for Senior Debt to the same extent as, or to a greater extent than, the Notes and the
Note Guarantees are subordinated to Senior Debt under the Indenture.




          ‘‘Permitted Liens’’ means:




          (1) Liens on the assets of the Company, Guarantor and any Restricted Subsidiary that is not a
Domestic Subsidiary securing Senior Debt that was permitted by the terms of the Indenture to be
Incurred;




          (2) Liens in favor of the Company or any Restricted Subsidiary that is a Guarantor;




          (3) Liens on property of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the Company or the
Restricted Subsidiary;




          (4) Liens on property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any property other than the property so
acquired by the Company or the Restricted Subsidiary;




          (5) Liens securing the Notes and the Note Guarantees;




          (6) Liens existing on the Issue Date;




          (7) Liens securing Permitted Refinancing Indebtedness; provided that such Liens do not extend
to any property or assets other than the property or assets that secure the Indebtedness being
refinanced;




          (8) Liens on property or assets used to defease or to satisfy and discharge Indebtedness;
provided that (a) the Incurrence of such Indebtedness was not prohibited by the Indenture and (b)
such defeasance or satisfaction and discharge is not prohibited by the Indenture;




          (9) Liens incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance or other kinds of social




20









 







security, or to secure the payment or performance of tenders, bids, contracts (other than
contracts for the payment of Indebtedness) or leases to which such Person is a party, statutory or
regulatory obligations, surety or appeal bonds, performance bonds or other obligations of a like
nature incurred in the ordinary course of business (including lessee or operator obligations under
statutes, governmental regulations or instruments related to the ownership, exploration and
production of oil, gas and minerals on state or federal lands or waters);




          (10) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly instituted
and diligently concluded, provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;




          (11) statutory liens of landlords, mechanics, suppliers, vendors, warehousemen, carriers or
other like Liens arising in the ordinary course of business;




          (12) prejudgment liens and judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceeding that may have been duly
initiated for the review of such judgment has not been finally terminated or the period within
which such proceeding may be initiated has not expired;




          (13) Liens constituting survey exceptions, encumbrances, easements, and reservations of, and
rights to others for, rights-of-way, zoning and other restrictions as to the use of real
properties, and minor defects of title which, in the case of any of the foregoing, do not secure
the payment of borrowed money, and in the aggregate do not materially adversely affect the value of
the assets of the Company and its Restricted Subsidiaries, taken as a whole, or materially impair
the use of such properties for the purposes of which such properties are held by the Company or
such Subsidiaries;




          (14) Liens securing Indebtedness incurred to finance the construction, purchase or lease of,
or repairs, improvements or additions to, property, plant or equipment of such Person; provided,
however, that the Lien may not extend to any other property owned by such Person or any of its
Restricted Subsidiaries at the time the Lien is incurred or created (other than assets and property
affixed or appurtenant thereto), and the Indebtedness (other than any interest thereon) secured by
the Lien may not be incurred or created more than 180 days after the later of the date of
acquisition, completion of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien; and




          (15) Liens incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $5.0 million at any one
time outstanding.




          ‘‘Permitted Refinancing Indebtedness’’ means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




21









 








          (1) the principal amount (or accreted value or liquidation preference, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the amount (or accreted value or liquidation
preference, if applicable) the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued and unpaid interest thereon and the amount of any reasonably determined
premium necessary to accomplish such refinancing and such reasonable expenses incurred in
connection therewith);




          (2) such Permitted Refinancing Indebtedness has a final maturity date (or redemption date, if
applicable) later than the final maturity date (or redemption date, if applicable) of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;




          (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes or the Note Guarantees, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of the Notes, and is
subordinated in right of payment to, the Notes on terms at least as favorable, taken as a whole, to
the Holders of Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;




          (4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is
pari passu in right of payment with the Notes or any Note Guarantees, such Permitted Refinancing
Indebtedness is pari passu with, or subordinated in right of payment to, the Notes or such Note
Guarantees; and




          (5) such Indebtedness is Incurred by either (a) the Restricted Subsidiary that is the obligor
on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded or (b) the
Company; provided, however, that a Restricted Subsidiary that is also a Guarantor may guarantee
Permitted Refinancing Indebtedness incurred by the Company, whether or not such Restricted
Subsidiary was an obligor or guarantor of the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.




          ‘‘Person’’ means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.




          ‘‘Preferred Stock’’ means, with respect to any Person, any Capital Stock of such Person that
has preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions upon liquidation.




          ‘‘Principals’’ means CapStreet II, L.P., CapStreet Parallel II, L.P. and TA Associates, Inc.,
TA IX L.P., TA/Atlantic and Pacific IV L.P., TA/Atlantic and Pacific V L.P., TA Strategic Partners
Fund A L.P., TA Strategic Partners Fund B L.P., TA Investors II, L.P.




          “Private Placement Legend” means the legend set forth in Section 2.07(g)(i) to be placed on
all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.




22









 








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




          ‘‘Rating Agency’’ means Standard & Poor’s and Moody’s or if Standard & Poor’s or Moody’s, or
both will not make a rating on any series of Notes publicly available, a nationally recognized
statistical rating agency or agencies, as the case may be, selected by the Company (as testified by
a resolution of the Board of Directors of the Company), which agency will be substituted for
Standard & Poor’s or Moody’s or both, as the case may be.




          ‘‘Registration Rights Agreement’’ means (1) with respect to the Notes issued on the Issue
Date, the Registration Rights Agreement, to be dated the Issue Date, among the Company, the Initial
Guarantors, and Banc of America Securities LLC and (2) with respect to any Additional Notes, any
registration rights agreement between the Company and the other parties thereto relating to the
registration by the Company of such Additional Notes under the Securities Act.




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




          “Regulation S Global Note” means a Legended Regulation S Global Note or an Unlegended
Regulation S Global Note, as appropriate.




          ‘‘Related Party’’ means (1) any Affiliate of any Principal, including any controlling
stockholder, partner, member, Subsidiary or immediate family member (in the case of an individual)
of any Principal, and including any equity fund advised by any such Person, but excluding any
portfolio company of any such Person and (2) limited partners or members of any investment fund
involved within the definition of ‘‘Principal’’ with respect to Equity Interests of the Company
received as distributions in kind from such Principal; provided that, as a result of such
distribution, no such limited partner or member will ‘‘control’’ the Company as such term is
defined under the definition of ‘‘Affiliate.’’




          ‘‘Replacement Assets’’ means (1) non-current assets that will be used or useful in a Permitted
Business or (2) substantially all the assets of a Permitted Business or a majority of the Voting
Stock of any Person engaged in a Permitted Business that will become on the date of acquisition
thereof a Restricted Subsidiary that is a Guarantor.




          “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.




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




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




23









 








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




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




          “Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an
Unrestricted 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.




          “SEC” means the Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Senior Debt” of any Person means:




          (1) all Indebtedness of such Person outstanding under the Credit Agreement and all Hedging
Obligations with respect thereto, whether outstanding on the Issue Date or Incurred thereafter;




          (2) any other Indebtedness of such Person permitted to be Incurred under the terms of the
Indenture, unless the instrument under which such Indebtedness is Incurred expressly provides that
it is on a parity with or is subordinated in right of payment to the Notes or any Note Guarantee;
and




          (3) all Obligations with respect to the items listed in the preceding clauses (1) and (2)
(including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law).




          Notwithstanding anything to the contrary in the preceding paragraph, Senior Debt will not
include:




          (1) any liability for federal, state, local or other taxes owed or owing by the Company or any
Guarantor;




          (2) any Indebtedness of the Company or any Guarantor to any of their Subsidiaries or other
Affiliates;




          (3) any trade payables;




24









 








          (4) the portion of any Indebtedness that is Incurred in violation of the Indenture, provided
that a good faith determination by the Board of Directors of the Company evidenced by a Board
Resolution, or a good faith determination by the Chief Financial Officer of the Company evidenced
by an officer’s certificate, that any Indebtedness being incurred under the Credit Agreement is
permitted by the Indenture will be conclusive;




          (5) any Indebtedness of the Company or any Guarantor that, when Incurred, was without recourse
to the Company or such Guarantor;




          (6) any repurchase, redemption or other obligation in respect of Disqualified Stock or
Preferred Stock; or




          (7) any Indebtedness owed to any employee of the Company or any of its Subsidiaries.




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




          “Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”
within the meaning of Article 1 of Regulation S-X under the Securities Act.




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




          “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.




          “Subsidiary” means, with respect to any specified Person:




          (1) any corporation, association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
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 (a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).




          ‘‘Subsidiary Guarantors’’ means:




          (1) each direct or indirect Domestic Subsidiary of the Company on the date of the Indenture;
and




25









 








          (2) any other subsidiary that executes a Note Guarantee in accordance with the provisions of
the Indenture.




          ‘‘Treasury Rate’’ means the yield to maturity at the time of computation 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 the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the then
remaining term of the Notes to August 15, 2009; provided, however, that if the then remaining term
of the Notes to August 15, 2009 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the then
remaining term of the Notes to August 15, 2009 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year will
be used.




          “TIA” means the Trust Indenture Act of 1939, as in effect on the date on which this Indenture
is qualified under the TIA.




          “Trustee” means Wells Fargo Bank, National Association, until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.




          “Unlegended Regulation S Global Note” means a permanent global Note in the form of Exhibit
A bearing the Global Note Legend, deposited with or on behalf of and registered in the name of
the Depositary or its nominee and issued upon expiration of the Restricted Period.




          “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 that bears the Global Note Legend, that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes, and that does not bear
the Private Placement Legend.




          “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with the provisions of Section 4.16 and any Subsidiary of such Subsidiary.




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




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




26









 








          ‘‘Weighted Average Life to Maturity’’ means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:




          (1) the sum of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment; by




          (2) the then outstanding principal amount of such Indebtedness.




Section 1.02. Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”

	 	 	4.11	 
	“Asset Sale Offer”

	 	 	4.10	 
	“Authentication Order”

	 	 	2.02	 
	“Change of Control Offer”

	 	 	4.14	 
	“Change of Control Payment”

	 	 	4.14	 
	“Change of Control Payment Date”

	 	 	4.14	 
	“Covenant Defeasance”

	 	 	8.03	 
	“DTC”

	 	 	2.01	 
	“Event of Default”

	 	 	6.01	 
	“Legal Defeasance”

	 	 	8.02	 
	“nonpayment default”

	 	 	11.03	 
	“Offer Amount”

	 	 	3.08	 
	“Offer Period”

	 	 	3.08	 
	“offshore transaction”

	 	 	2.07	 
	“Paying Agent”

	 	 	2.04	 
	“Payment Blockage Notice”

	 	 	11.03	 
	“Payment Default”

	 	 	6.01	 
	“Permitted Debt”

	 	 	4.09	 
	“Purchase Date”

	 	 	3.08	 
	“Registrar”

	 	 	2.04	 
	“Related Proceedings”

	 	 	14.09	 
	“Repurchase Offer”

	 	 	3.08	 
	“Restricted Payments”

	 	 	4.07	 
	“Specified Courts”

	 	 	14.09	 






Section 1.03. Incorporation by Reference of Trust Indenture Act.




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




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




27









 








          “indenture securities” means the Notes and the Note Guarantees;




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




          “indenture to be qualified” means this Indenture;




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




          “obligor” on the Notes means the Company, the Guarantors and any successor obligor upon
the Notes or the Note Guarantees.




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




Section 1.04. Rules of Construction. Unless the context otherwise requires:



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

	 
	(c)	 	“or” is not exclusive; 
	 
	(d)	 	words in the singular include the plural, and in the plural
include the singular;
	 
	(e)	 	“herein”, “hereof” and other words of similar import refer to
this Indenture as a whole and not to any particular Section, Article or other
subdivision;
	 
	(f)	 	“$,” “U.S. Dollars” and “United States Dollars” each refer to
United States dollars, or such other money of the United States that at time of
payment is legal tender for payment of public and private debts;
	 
	(g)	 	all references to Sections or Articles or Exhibits refer to
Sections or Articles or Exhibits of or to this Indenture unless otherwise
indicated; and
	 
	(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.









ARTICLE TWO

THE NOTES




Section 2.01. Form and Dating.




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

28









 







authentication. The Notes shall be issued in registered form without interest coupons in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof.




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




          (b) Global Notes. Notes issued in global form shall be substantially in the form of
Exhibit A (and shall include 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 (but without the Global Note Legend thereon and
without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global
Note shall represent such of the outstanding Notes as shall be specified therein and each shall
provide that it represents the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented thereby shall be made by the
Trustee or, if the Custodian and the Trustee are not the same Person, by the Custodian at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.07.




          (c) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for The
Depository Trust Company (“DTC”) in New York, New York, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf
of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Following the termination of the Restricted Period, beneficial interests in
the Legended Regulation S Global Note may be exchanged for beneficial interests in Unlegended
Regulation S Global Notes pursuant to Section 2.07 and the Applicable Procedures. Simultaneously
with the authentication of Unlegended Regulation S Global Notes, the Trustee shall cancel the
Legended Regulation S Global Note. The aggregate principal amount of the Regulation S Global Notes
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) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream shall
be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream.





29










 






Section 2.02. Execution and Authentication.




               At least one Officer of the Company shall sign the Notes for the Company by manual or
facsimile signature.



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



               A Note shall not be valid until authenticated by the manual signature of the Trustee. Such
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.



               The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited.



               The Company may, subject to Article Four of this Indenture and applicable law, issue
Additional Notes under this Indenture, including Exchange Notes. The Notes issued on the Issue
Date and any Additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture.



               At any time and from time to time after the execution of this Indenture, the Trustee shall,
upon receipt of a written order of the Company signed by an Officer of the Company (an
“Authentication Order”), authenticate Notes for original issue in an aggregate principal amount
specified in such Authentication Order. The Authentication Order shall specify the amount of Notes
to be authenticated and the date on which the Notes are to be authenticated.



               The Trustee may appoint an authenticating agent acceptable to the Company 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 Company.


Section 2.03. Methods of Receiving Payments on the Notes.




               If a Holder has given wire transfer instructions to the Company, the Company shall pay all
principal, interest and premium and Additional Interest, if any, on that Holder’s Notes in
accordance with those instructions. All other payments on Notes shall be made at the office or
agency of the Paying Agent and Registrar within the City and State of New York unless the Company
elects to make interest payments by check mailed to the Holders at their addresses set forth in the
register of Holders.


Section 2.04. Registrar and Paying Agent.




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



30









 





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




               (b) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes.



               (c) The Company initially appoints DTC to act as Depositary with respect to the Global Notes.


Section 2.05. Paying Agent to Hold Money in Trust.




               The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest
on the Notes, and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or one of its Subsidiaries) shall have no further liability for the money. If the Company
or one of its Subsidiaries 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 Company, the Trustee shall serve as Paying Agent for the
Notes.


Section 2.06. Holder Lists.




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


Section 2.07. Transfer and Exchange.




               (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if (i) DTC (A) notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Notes and the Company fails to appoint
a successor Depositary within 90 days after receiving such notice or (B) has ceased to be a
clearing agency registered under the Exchange Act and the Company fails



31









 







to appoint a successor Depositary within 90 days after becoming aware of such condition; (ii)
the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of
Definitive Notes in exchange for Global Notes (in whole but not in part); provided that in no event
shall the Legended Regulation S Global Note be exchanged by the Company for Definitive Notes other
than in accordance with Section 2.07(c)(ii); or (iii) there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or
in part, as provided in Sections 2.08 and 2.11. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07 or Section
2.08 or 2.11, shall be authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this Section 2.07(a);
however, beneficial interests in a Global Note may be transferred and exchanged as provided in
Section 2.07(b), (c) or (f).



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




     (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Legended Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers described in this
Section 2.07(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 2.07(b)(i) above, 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



32









 







Note in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall Definitive Notes be
issued upon the transfer or exchange of beneficial interests in the Legended Regulation S
Global Note other than in accordance with Section 2.07(c)(ii). Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.07(f), the requirements of this
Section 2.07(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by the holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.07(i).




     (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 2.07(b)(ii) above and the Registrar
receives the following:




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




     (B) if the transferee shall take delivery in the form of a beneficial interest
in a Legended Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B, 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 2.07(b)(ii) above and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal (1) it is not
an affiliate (as defined in Rule 144) of the Company, (2) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (3) it is acquiring the Exchange Notes in its ordinary course of
business;




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



33









 







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




     (D) the Registrar receives the following:




            (1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C, 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, including the certifications in item (4) thereof;




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



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



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



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




    (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon 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 in the form of Exhibit C, including the
certifications in item (2)(a) thereof;



34









 






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




     (C) [INTENTIONALLY OMITTED];




     (D) [INTENTIONALLY OMITTED];




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




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




the Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.07(i), and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c) shall
be registered in such name or names and in such authorized denomination or denominations as
the holder of such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver
such 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 2.07(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.




     (ii) Beneficial Interests in Legended Regulation S Global Note to Definitive Notes. A
beneficial interest in the Legended Regulation S 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 the expiration of the Restricted Period, 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 if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a



35









 







transfer, certifies in the applicable Letter of Transmittal that (1) it is not
an affiliate (as defined in Rule 144) of the Company, (2) it is not engaged in, and
does not intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (3) it is acquiring the Exchange Notes in its ordinary course of
business;




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




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




     (D) the Registrar receives the following:




     (3) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit C, including the certifications in
item (1)(b) thereof; or




     (4) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note that does not bear
the Private Placement Legend, a certificate from such Holder in the form of
Exhibit B, including the certifications in item (4) thereof;




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




     (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
satisfaction of the conditions set forth in Section 2.07(b)(ii), the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.07(i), and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.07(c)(iv) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such



36









 







beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall deliver 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 2.07(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 Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




     (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 in the form of Exhibit C, 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 to the effect set forth in Exhibit
B, 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 to the effect set forth in Exhibit B, including the
certifications in item (2) thereof; or




     (D) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B,
including the certifications in item (3)(a) 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
appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note,
and in the case of clause (C) above, the Regulation S Global Note.




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal (1) it is not an affiliate (as defined in Rule 144) of the



37









 







Company, (2) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of
the Exchange Notes to be issued in the Exchange Offer and (3) it is acquiring the
Exchange Notes in its ordinary course of business;




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




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




     (D) the Registrar receives the following:




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




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




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




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




     (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note 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 subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted



38









 







Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, 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 2.07(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.07(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 shall be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit
B, including the certifications in item (1) thereof;




     (B) [INTENTIONALLY OMITTED]; and




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




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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that (1) it is not an affiliate (as defined in Rule 144) of
the Company, (2) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of
the Exchange Notes to be issued in the Exchange Offer and (3) it is acquiring the
Exchange Notes in its ordinary course of business;




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



39









 






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




     (D) the Registrar receives the following:




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




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




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




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



               (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (x) they are not affiliates (as defined in Rule 144) of the Company,
(y) they are not engaged in, and do not intend to engage in, and have no arrangement or
understanding with any Person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (z) they are acquiring the Exchange Notes in their ordinary course of
business and (ii) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of
Restricted Global Notes so accepted Unrestricted Global Notes in the appropriate principal amount.



40









 





               (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. Except as permitted 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:




“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER, THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE ISSUER THAT




     (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY




     (i)(a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS),




     (ii) TO THE ISSUER, OR




     (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION, AND




     (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY



41









 






EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.”




     Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.07 (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:




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 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.



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




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



           (i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12. At any time
prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for 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 shall 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.



42









 





           (j) General Provisions Relating to Transfers and Exchanges.




     (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order or
at the Registrar’s request.




     (ii) No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charges payable upon exchange or transfer pursuant to Sections 2.11,
3.06, 3.08, 4.10, 4.14 and 9.05).




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




     (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 and legally binding
obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.




     (v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 and ending at the close of
business on the day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part, (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding interest payment date or (D) to register the transfer of or to
exchange a Note tendered and not withdrawn 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 Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.




     (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02.




     (viii) All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.07 to effect a registration of
transfer or exchange may be submitted by facsimile.



43









 





Section 2.08. Replacement Notes.




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



               (b) Every replacement Note is an additional obligation of the Company and shall be entitled to
all of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.


Section 2.09. Outstanding Notes.




               (a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section 2.10, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however,
Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(b).



               (b) If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser
or protected purchaser.



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



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


Section 2.10. Treasury Notes.




               In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, shall be considered 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 the Trustee knows are so owned shall be so disregarded.



44









 





Section 2.11. Temporary Notes.




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



               (b) Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.


Section 2.12. Cancellation.




               The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.


Section 2.13. Defaulted Interest.




               If the Company 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. The Company 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. The Company shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name and at the expense of
the Company) shall mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.


Section 2.14. CUSIP Numbers.




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



45









 





ARTICLE THREE

REDEMPTION AND OFFERS TO

PURCHASE




Section 3.01. Notices to Trustee.




               If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes
to be redeemed and (iv) the redemption price.


Section 3.02. Selection of Notes to Be Redeemed.




               (a) If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes to be redeemed among the Holders of the Notes in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee shall
deem fair and appropriate. In the event of partial redemption by lot, the particular Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not previously called
for redemption.



               (b) The Trustee shall promptly notify the Company 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. No Notes in amounts of $1,000 or less shall be redeemed in part. Notes
and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, 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.




               (a) At least 30 days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture.




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




(i) the redemption date;




(ii) the redemption price;




(iii) if any Note is being redeemed in part, the portion of the principal amount of
such Note to be redeemed and that, after the redemption date upon surrender of such



46









 






Note, a new Note or Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon cancellation of the
original Note;




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




     (v) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price and become due on the date fixed for redemption;




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




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




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



               (b) At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days prior to the redemption date, an Officers’ Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in
Section 3.03(a). The notice, if mailed in the manner provided herein shall be presumed to have
been given, whether or not the Holder receives such notice.


Section 3.04. Effect of Notice of Redemption.




               Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price.
Interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date,
unless the Company defaults in making the applicable redemption payment. A notice of redemption
may not be conditional.


Section 3.05. Deposit of Redemption Price.




               (a) Not later than 11:00 a.m. Eastern Time on the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and
accrued and unpaid interest and Additional Interest, if any, on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be redeemed.



               (b) If the Company complies with the provisions of Section 3.05(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 an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be paid to the Person in
whose



47









 







name such Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because of the failure of
the Company to comply with Section 3.05(a), 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 not paid on
such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.


Section 3.06. Notes Redeemed in Part.




               Upon surrender and cancellation of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered. No Notes in denominations of
$1,000 or less shall be redeemed in part.


Section 3.07. Optional Redemption.




               (a) The Company shall have the option to redeem the Notes at the redemption prices, on the
dates and in the manner provided in paragraph 5 of the Notes.



               (b) Any redemption pursuant to this Section 3.07 shall be made in accordance with the
provisions of Sections 3.01 through 3.06.


Section 3.08. Repurchase Offers.




               In the event that, pursuant to Section 4.10 or Section 4.14, the Company shall be required to
commence an offer to all Holders to purchase all or a portion of their respective Notes (a
“Repurchase Offer”), it shall follow the procedures specified in such Sections and, to the extent
not inconsistent therewith, the procedures specified below.



               The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, 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 Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 (the “Offer Amount”) or, if less than the
Offer Amount has been tendered, all Notes tendered in response to the Repurchase Offer.



               If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Repurchase Offer.



               Upon the commencement of a Repurchase Offer, the Company shall send, by first class mail, a
notice to the Trustee and 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 Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall
govern the terms of the Repurchase Offer, shall state:



48









 






     (i) that the Repurchase Offer is being made pursuant to this Section 3.08 and Section
4.10 or Section 4.14, and the length of time the Repurchase 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 and Additional Interest, if any;




     (iv) that, unless the Company defaults in making such payment, any Note (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;




     (v) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may
elect to have Notes purchased in integral multiples of $1,000 only;




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




     (vii) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, 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 such Holder’s election to have such Note
purchased;




     (viii) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall, subject in the case of a Repurchase Offer made pursuant to the
provisions of Section 4.10, select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations
of $1,000, or integral multiples thereof, shall be purchased); and




     (ix) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).



               On the Purchase Date, the Company shall, to the extent lawful, subject in the case of a
Repurchase Offer made pursuant to Section 4.10 to the provisions of Section 4.10, accept for
payment on a pro rata basis to the extent necessary, the Offer Amount of Notes (or portions
thereof) tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating
that such Notes (or portions thereof) were accepted for payment by the Company in accordance with
the terms of this Section 3.08. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly (but in any case not later than five Business Days after the Purchase



49









 







Date) mail or deliver to each tendering Holder an amount equal to the purchase price of Notes
tendered by such Holder, as the case may be, and accepted by the Company for purchase, and the
Company shall promptly issue a new Note. The Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the respective Holder thereof. The Company shall publicly announce the
results of the Repurchase Offer on the Purchase Date.



               The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Repurchase Offer. To the
extent that the provisions of any securities laws or regulations conflict with Section 3.08, 4.10
or 4.14, the Company shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under Section 3.08, 4.10 or 4.14 by virtue of such
compliance.


Section 3.09. No Sinking Fund.




               The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



ARTICLE FOUR

COVENANTS



Section 4.01. Payment of Notes.




               (a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest
on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.



               (b) The Company 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, and Additional Interest
(without regard to any applicable grace period) at the same rate to the extent lawful.


Section 4.02. Maintenance of Office or Agency.




               (a) The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or Registrar or agent of the



50









 







Trustee or Registrar) where Notes may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.



               (b) The Company may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



               (c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.04 of this Indenture.


Section 4.03. Reports.




               (a) The Company shall furnish to the Trustee and, upon request, to the Holders a copy of all
of the information and reports referred to in clauses (i) and (ii) below, if such information and
reports are not filed electronically with the Commission, within the time periods specified in the
Commission’s rules and regulations:



               (i) all quarterly and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms,
including a ‘‘Management’s Discussion and Analysis of Financial Condition and Results of
Operations’’ and, with respect to the annual information only, a report on the annual financial
statements by the Company’s certified independent accountants; and



               (ii) all current reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports.



               (b) After consummation of the Exchange Offer contemplated by the Registration Rights
Agreement, whether or not required by the Commission, the Company shall comply with the periodic
reporting requirements of the Exchange Act and will file the reports specified in the preceding
paragraph with the Commission within the time periods specified above unless the Commission will
not accept such a filing. The Company shall not take any action for the purpose of causing the
Commission not to accept any such filings. If, notwithstanding the foregoing, the Commission will
not accept the Company’s filings for any reason, the Company shall post the reports referred to in
the preceding clause on its website within the time periods that would apply if the Company were
required to file those reports with the Commission.



               (c) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries or if
any of the Company’s Subsidiaries are not Guarantors, then the Company shall include a reasonably
detailed discussion of the financial condition and results of operations of



51









 







such Unrestricted Subsidiary, or if more than one, of such Unrestricted Subsidiaries, taken as
a whole and of such non-Guarantor Subsidiaries taken as a whole, separately in each case, in the
section of the Company’s quarterly and annual financial information required by this clause under
the caption ‘‘Management’s Discussion and Analysis of Financial Condition and Results of
Operations,’’ and further, in the case of the non-Guarantor Subsidiaries, also include a
presentation of the financial condition and results of operations of such non-Guarantor
Subsidiaries on the face of the financial statements or in the footnotes thereto, separate from the
financial condition and results of operations of the Company and its Restricted Subsidiaries.



               (d) For so long as any Notes remain outstanding, the Company and the Guarantors shall furnish
to the Holders and to prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.


Section 4.04. Compliance Certificate.




               (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company and the Guarantors have kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to his or her knowledge, the Company and the Guarantors have kept, observed,
performed and fulfilled their obligations under this Indenture and are not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company and the Guarantors are
taking or propose to take with respect thereto) and that to his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company and the Guarantors are taking or propose to take with respect
thereto.



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


Section 4.05. Taxes.




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


Section 4.06. Stay, Extension and Usury Laws.




               The Company and each of the Guarantors covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever claim



52









 







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


Section 4.07. Restricted Payments.




               (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:



               (i) declare or pay (without duplication) any dividend or make any other payment or
distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests
(including, without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders
of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such
(other than dividends, payments or distributions (x) payable in Equity Interests (other than
Disqualified Stock) of the Company or (y) to the Company or a Restricted Subsidiary of the
Company);



               (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) any Equity Interests of the Company, or any Restricted Subsidiary thereof held by
Persons other than the Company or any of its Restricted Subsidiaries;



               (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note
Guarantees, except (a) a payment of interest or principal at the Stated Maturity thereof or (b) the
purchase, repurchase or other acquisition of any such 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 such purchase, repurchase or other acquisition; or



               (iv) make any Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as ‘‘Restricted Payments’’),


unless, at the time of and after giving effect to such Restricted Payment:




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



               (B) the Company would, at the time of such Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to Incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09; and



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               (C) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (iii), (iv), (v), (vi) and (x) of the next succeeding
paragraph (b)), is less than the sum, without duplication, of:




     (1) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter commencing
after the Issue Date to the end of the Company’s most recently ended fiscal quarter
for which internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit, less 100%
of such deficit), plus




     (2) 100% of the aggregate net cash proceeds and the Fair Market Value of assets
other than cash received by the Company since the Issue Date as a contribution to
its common equity capital or from the issue or sale of Equity Interests (other than
Disqualified Stock) of the Company or from the Incurrence of Indebtedness of the
Company that has been converted into or exchanged for such Equity Interests (other
than Equity Interests sold to, or Indebtedness held by, a Subsidiary of the
Company), plus




     (3) with respect to Restricted Investments made by the Company and its
Restricted Subsidiaries after the Issue Date, an amount equal to the net reduction
in such Restricted Investments in any Person resulting from repayments of loans or
advances, or other transfers of assets, in each case to the Company or any
Restricted Subsidiary or from the net cash proceeds from the sale of any such
Restricted Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Consolidated Net Income), from the
release of any Guarantee (except to the extent any amounts are paid under such
Guarantee) or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries, not to exceed, in each case, the amount of Restricted Investments
previously made by the Company or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary after the Issue Date; plus




     (4) the amount by which Indebtedness of the Company is reduced on the Company’s
most recent quarterly balance sheet upon the conversion or exchange subsequent to
the Issue Date of any Indebtedness of the Company convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company (less the amount of any
cash or the Fair Market Value of any other property distributed by the Company upon
such conversion or exchange) plus the amount of any cash received by the Company
upon such conversion or exchange; provided, however, that such amount may not exceed
the net proceeds received by the Company or any of its Restricted Subsidiaries from
the conversion or exchange of such Indebtedness (excluding Net Proceeds from
conversion or exchange by a Subsidiary of the Company or by an employee ownership
plan or by a trust established by the Company or any of its Subsidiaries for the
benefit of their employees).



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               (b) The preceding provisions will not prohibit, so long as, in the case of clauses (vii) and
(xii) below, no Default has occurred and is continuing or would be caused thereby:



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



               (ii) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of
its Common Stock on a pro rata basis;



               (iii) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness or Disqualified Stock of the Company or any Guarantor or of any Equity
Interests of the Company or any Restricted Subsidiary in exchange for, or out of the net cash
proceeds of a contribution to the Equity Interests (other than Disqualified Stock) of the Company
or a substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests
(other than Disqualified Stock) of the Company; provided that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other
acquisition will be excluded from Section 4.07(a)(iii)(b);



               (iv) the defeasance, redemption, repurchase or other acquisition of Indebtedness subordinated
to the Notes or the Note Guarantees with the net cash proceeds from an Incurrence of Permitted
Refinancing Indebtedness;



               (v) Investments acquired as a capital contribution to, or in exchange for, or out of the net
cash proceeds of a substantially concurrent offering of, Equity Interests (other than Disqualified
Stock) of the Company; provided that the amount of any such net cash proceeds that are utilized for
any such acquisition or exchange will be excluded from Section 4.07(a)(iii)(b);



               (vi) the repurchase of Capital Stock deemed to occur upon the exercise of options or warrants
to the extent that such Capital Stock represents all or a portion of the exercise price thereof;



               (vii) the repurchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company held by any current or former employee or director of the Company (or any
of its Restricted Subsidiaries) pursuant to the terms of any employee equity subscription
agreement, stock option agreement or similar agreement entered into in the ordinary course of
business; provided that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests in a calendar year does not exceed $2.0 million (with unused amounts in
any calendar year being carried over to succeeding calendar years (without giving effect to the
following proviso)) and does not exceed $6.0 million in aggregate; provided further that such
amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds
received by the Company from the sale of Equity Interests (other than Disqualified Stock) of the
Company to members of management or directors of the Company and its Restricted Subsidiaries that
occurs after the Issue Date (to the extent such cash proceeds from the sale of such Equity
Interests have not otherwise been applied to the payment of Restricted Payments) plus (B) the net
cash proceeds of key man life insurance policies received by the




55










 





Company and its Restricted Subsidiaries after the Issue Date, less (C) the amount of any
Restricted Payments made pursuant to clauses (A) and (B) of this clause (vii);




          (viii) payments in respect of management fees to any of the Principals pursuant to agreements
in effect on the Issue Date as described in this Offering Memorandum in an amount not to exceed an
aggregate amount of $500,000 in any calendar year;




          (ix) payments of dividends on Disqualified Stock otherwise permitted under this Indenture;




          (x) cash payments in lieu of the issuance of fractional shares in connection with the exercise
of warrants, options or other securities convertible into or exchangeable for Capital Stock of the
Company;




          (xi) payments of dividends on the Company’s common stock following the first bona fide
underwritten public offering of common stock of the Company after the Closing Date, of up to 6% per
annum of the net cash proceeds received by the Company from such public offering; provided however,
that (A) at the time of payment of any such dividend, no Default will have occurred and be
continuing (or result therefrom), and (B) the aggregate amount of all dividends paid under this
clause (xi) will not exceed the aggregate amount of net proceeds received by the Company from such
public offering; and




          (xii) other Restricted Payments in an aggregate amount not to exceed $10.0 million.




          (c) The amount of all Restricted Payments (other than cash) will be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted
Payment. Not later than the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers’ Certificate stating that such Restricted Payment is permitted and setting
forth the basis upon which the calculations required by this Section 4.07 were computed, together
with a copy of any opinion or appraisal required by this Indenture.




Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:




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




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




56









 








          (iii) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.




          (b) However, Section 4.08(a) will not apply to encumbrances or restrictions:




          (i) existing under, by reason of or with respect to the Credit Agreement, Existing
Indebtedness or any other agreements in effect on the Issue Date and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof,
provided that the encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or refinancings are no
more restrictive, taken as a whole, than those contained in the Credit Agreement, Existing
Indebtedness or such other agreements, as the case may be, as in effect on the Issue Date;




          (ii) set forth in the Indenture, the Notes and the Note Guarantees;




          (iii) existing under, by reason of or with respect to applicable law;




          (iv) with respect to any Person or the property or assets of a Person acquired by the Company
or any of its Restricted Subsidiaries existing at the time of such acquisition and not incurred in
connection with or in contemplation of such acquisition, which encumbrance or restriction is not
applicable to any Person or the properties or assets of any Person, other than the Person, or the
property or assets of the Person so acquired and any amendments, modifications, restatements,
renewals, extensions, supplements, refundings, replacements or refinancings thereof; provided that
the encumbrances and restrictions in any such amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacement or refinancings are no more restrictive, taken as
a whole, than those in effect on the date of the acquisition;




          (v) in the case of Section 4.08(a)(iii):





      (A) that restrict in a customary manner the subletting, assignment or transfer
of any property or asset that is a lease, license, conveyance or contract or similar
property or asset,




      (B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary thereof not otherwise prohibited by this Indenture;




      (C) any encumbrance or restriction arising or existing by reason of
construction loans or purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations, in each case to the
extent permitted under this Indenture;




      (D) customary restrictions imposed on the transfer of intellectual property in
connection with licenses of such intellectual property in the ordinary course of
business;



57









 






      (E) encumbrances or restrictions existing under or by reason of provisions with
respect to the disposition or distribution of assets or property in joint venture
agreements and other similar agreements, in each case to the extent permitted under
the Indenture, so long as any such encumbrances or restrictions are not applicable
to any Person (to its property or assets) other than such joint venture or a
Subsidiary thereof; or




      (F) arising or agreed to in the ordinary course of business, not relating to
any Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary thereof
in any manner material to the Company or any Restricted Subsidiary thereof;



          (vi) existing under, by reason of or with respect to any agreement for the sale or other
disposition of all or substantially all of the Capital Stock of, or property and assets of, a
Restricted Subsidiary that restrict distributions by that Restricted Subsidiary pending such sale
or other disposition; and




          (vii) on cash or other deposits or net worth imposed by customers or required by insurance,
surety or bonding companies, in each case, under contracts entered into in the ordinary course of
business.




Section 1.03. Incurrence of Indebtedness.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness; provided, however, that the Company or any
Guarantor may Incur Indebtedness or Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company’s most recently ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness or Disqualified
Stock is Incurred would have been at least 2.0 to 1, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the additional Indebtedness or
Disqualified Stock had been Incurred at the beginning of such four-quarter period.




          (b) So long as no Default shall have occurred and be continuing or would be caused thereby.
Section 4.09(a) will not prohibit the Incurrence of the following items of Indebtedness
(collectively, ‘‘Permitted Debt’’):




          (i) the Incurrence by the Company or any Guarantor of Indebtedness under Credit Facilities
(including, without limitation, the Incurrence by the Company and the Guarantors of Guarantees
thereof) in an aggregate amount at any one time outstanding pursuant to this clause (1) not to
exceed $200.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the
Company or any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to
Section 4.10 ; provided that a Restricted Subsidiary that is not a Domestic Subsidiary or a
Guarantor of Indebtedness under the Credit Facilities may incur Indebtedness pursuant to this
clause (i), together with Indebtedness Incurred pursuant to clause




58









 







(ix) of this Section 4.09(b), in an aggregate amount, after giving effect to such Incurrence,
at any time outstanding not to exceed the greater of (a) $25.0 million or (b) 40% of the aggregate
Consolidated Net Assets of such Restricted Subsidiaries;




          (ii) the Incurrence of Existing Indebtedness;




          (iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes and the related Note Guarantees to be issued on the Issue Date;




          (iv) the Incurrence by the Company or any Guarantor of Indebtedness represented by Capital
Lease Obligations, mortgage financings, construction loans or purchase money obligations for
property acquired in the ordinary course of business, in each case Incurred for the purpose of
financing all or any part of the purchase price or cost of construction or improvement of property,
plant or equipment used by the Company or any such Guarantor, in an aggregate amount, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness
Incurred pursuant to this clause (iv), not to exceed 7.5% of the Company’s Consolidated Net Assets
at any time outstanding;




          (v) the Incurrence by the Company or any Restricted Subsidiary of the Company of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by the
Indenture to be Incurred under Section 4.09(a) or clause (ii), (iii), (iv), (v), or (x) of this
Section 4.09(b);




          (vi) the Incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided,
however, that:





      (a) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be unsecured and expressly subordinated to the prior payment in
full in cash of all Obligations;




      (b) Indebtedness owed to the Company or any Guarantor must be evidenced by an
unsubordinated promissory note, unless the obligor under such Indebtedness is the
Company or a Guarantor; and




      (c) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary thereof, will be
deemed, in each case, to constitute an Incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not permitted by
this clause (vi);



          (vii) the Guarantee by the Company or any of the Guarantors of Indebtedness of the Company or
a Restricted Subsidiary of the Company that was permitted to be Incurred by another provision of
this Section 4.09; or




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          (viii) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate,
commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements
previously made for such purposes), and not for speculative purposes, and that do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in
interest rates, commodity prices or foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;




          (ix) the Incurrence by any Restricted Subsidiary other than a Domestic Subsidiary of
Indebtedness in an aggregate amount at any time outstanding, after giving effect to such Incurrence
and together with any Indebtedness Incurred under the proviso in clause (1) of this Section
4.09(b), not to exceed the greater of (a) $25 million or (b) 40% of the Consolidated Net Assets of
any such Restricted Subsidiaries; or




          (x) the Incurrence by the Company or any Guarantor of additional Indebtedness in an aggregate
amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to
refund, refinance or replace any Indebtedness Incurred pursuant to this clause (x), not to exceed
the greater of (a) $15.0 million or (b) 5% of the Consolidated Net Assets of the Company.




     For purposes of determining compliance with this covenant, in the event that any proposed
Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in
Sections 4.09(b)(i) through (x) above, or is entitled to be Incurred pursuant to Section 4.09(a),
the Company shall be permitted to classify such item of Indebtedness at the time of its Incurrence
in any manner that complies with this Section 4.09. In addition, any Indebtedness originally
classified as Incurred pursuant to Sections 4.09(b)(i) through (x) above may later be reclassified
by the Company such that it will be deemed as having been Incurred pursuant to another of such
clauses to the extent that such reclassified Indebtedness could be incurred pursuant to such new
clause at the time of such reclassification. Notwithstanding the foregoing, Indebtedness under the
Credit Agreement outstanding on the Issue Date will be deemed to have been Incurred on such date in
reliance on the exception provided by Section 4.09(b)(i).



          (c) Notwithstanding any other provision of this Section 4.09, the maximum amount of
Indebtedness that may be Incurred pursuant to this covenant will not be deemed to be exceeded with
respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange
rates of currencies.




Section 1.04. Asset Sales.




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




          (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity
Interests issued or sold or otherwise disposed of; and





60









 








          (ii) at least 75% of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination of both.
For purposes of this provision, each of the following will be deemed to be cash:





     (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet) of the Company or any Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms subordinated to the Notes
or any Note Guarantee and liabilities to the extent owed to the Company or any
Affiliate of the Company) that are assumed by the transferee of any such assets or
Equity Interests pursuant to a written novation agreement that releases the Company
or such Restricted Subsidiary from further liability therefor;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are contemporaneously (subject
to ordinary settlement periods) converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received in that conversion); and




     (C) any Designated Non-Cash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregated Fair Market Value,
taken together with all other Designated Non-Cash consideration received pursuant to
this clause (c) that is at that time outstanding, not to exceed the greater of (x)
5.0% of the Company’s Consolidated Net Assets as of the date or receipt of such
Designated Non-Cash Consideration and (y) $15.0 million (with the Fair Market Value
of each item of Designated Non-Cash Consideration being measured at the time
received and without giving effect to subsequent changes in value).



          (b) Within 540 days after the receipt of any Net Proceeds from an Asset Sale, the Company may
apply such Net Proceeds at its option:




          (i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto; or




          (ii) to purchase Replacement Assets (or enter into a binding agreement to purchase such
Replacement Assets; provided that (x) such purchase is consummated within 90 days after the date of
such binding agreement and (y) if such purchase is not consummated, within the period set forth in
subclause (x), the Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined
below)).



Pending the final application of any such Net Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not
prohibited by the Indenture.




          (c) On the 541st day after an Asset Sale or such earlier date, if any, as the Company
determines not to apply the Net Proceeds relating to such Asset Sale as set forth in
 

61









 







Section 4.10(b) (each such date being referred to as an ‘‘Excess Proceeds Trigger Date’’),
such aggregate amount of Net Proceeds that has not been applied on or before the Excess Proceeds
Trigger Date as permitted in Section 4.10(b) (‘‘Excess Proceeds’’) will be applied by the Company
to make an offer (an ‘‘Asset Sale Offer’’) to all Holders of Notes and all holders of other
Indebtedness that ranks pari passu in right of payment with the Notes or any Note Guarantee
containing provisions similar to those set forth in the Indenture with respect to offers to
purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes
and such other pari passu Indebtedness that may be purchased using the Excess Proceeds. The offer
price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such
other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to
the date of purchase, and will be payable in cash.




          (d) The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess
Proceeds equal to or in excess of $10.0 million resulting from one or more Asset Sales, at which
time the entire unutilized amount of Excess Proceeds (not only the amount in excess of $10.0
million) will be applied as provided in the preceding paragraph. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and such
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Notes and such other pari passu Indebtedness will be purchased on a pro rata basis
based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon
completion of each Asset Sale Offer, Excess Proceeds subject to such Asset Sale and still held by
the Company shall no longer be deemed to be Excess Proceeds.




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




Section 4.11. Transactions with Affiliates.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make
any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into, make, amend, renew or extend any
transaction, contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each, an ‘‘Affiliate Transaction’’), unless:




          (i) such Affiliate Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a comparable
arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an
Affiliate of the Company or any of its Restricted Subsidiaries; and




62









 








          (ii) the Company delivers to the Trustee:





      (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million, a Board
Resolution set forth in an Officers’ Certificate certifying that such Affiliate
Transaction or series of related Affiliate Transactions complies with this covenant,
and that such Affiliate Transaction or series of related Affiliate Transactions has
been approved by a majority of the disinterested members of the Board of Directors
of the Company; and




      (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction or series of related Affiliate Transactions from a financial
point of view issued by an independent accounting, appraisal or investment banking
firm of national standing.



          (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.11(a):




          (i) transactions between or among the Company and/or its Restricted Subsidiaries;




          (ii) payment of reasonable and customary fees to, and reasonable and customary indemnification
and similar payments on behalf of, directors of the Company;




          (iii) Restricted Payments that are permitted by the provisions of the Indenture under Section
4.07 including, without limitation, payments included in the definition of ‘‘Permitted
Investments’’; and




          (iv) any sale of Equity Interests (other than Disqualified Stock) of the Company;




          (v) the receipt by the Company of any capital contribution from its shareholders;




          (vi) transactions pursuant to agreements or arrangements in effect on the Issue Date and
described in this offering memorandum, or any amendment, modification, or supplement thereto or
replacement thereof, as long as such agreement or arrangement, as so amended, modified or
supplemented or replaced, taken as a whole, is not more disadvantageous to the Company and its
Restricted Subsidiaries than the original agreements or arrangements in existence on the Issue
Date;




          (vii) payment by the Company of management or other similar fees to any of the Principals
pursuant to any agreement or arrangement in an aggregate amount not to exceed $500,000 in any
calendar year; and




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          (viii) any employment, consulting, service or termination agreement, or reasonable and
customary indemnification arrangements, entered into by the Company or any of its Restricted
Subsidiaries with officers and employees of the Company or any of its Restricted Subsidiaries and
the payment of compensation to officers and employees of the Company or any of its Restricted
Subsidiaries (including amounts paid pursuant to employee benefit plans, employee stock option or
similar plans), so long as such agreement or payment has been approved by the Board of Directors of
the Company.




Section 4.12. Liens.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind
securing Indebtedness (other than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired, unless all payments due under the Indenture and the Notes are secured on an
equal and ratable basis with the obligations so secured (or, in the case of Indebtedness
subordinated to the Notes or the Note Guarantees, prior or senior thereto, with the same relative
priority as the Notes will have with respect to such subordinated Indebtedness) until such time as
such obligations are no longer secured by a Lien.




Section 4.13. Business Activities.




     The Company shall not, and shall not permit any Restricted Subsidiary thereof to, engage in
any business other than Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole.



Section 4.14. Offer to Repurchase upon a Change of Control.




          (a) If a Change of Control occurs, each Holder of Notes will have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of that
Holder’s Notes pursuant to an offer (a ‘‘Change of Control Offer’’) on the terms set forth in the
Indenture. In the Change of Control Offer, the Company shall offer a payment (a ‘‘Change of Control
Payment’’) in cash equal to not less than 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Additional Interest, if any, thereon, to the date
of repurchase (the ‘‘Change of Control Payment Date,’’ which date will be no earlier than the date
of such Change of Control). No later than 30 days following any Change of Control, the Company
shall mail a notice to each Holder describing the transaction or transactions that constitute the
Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified
in such notice, which date will be no earlier than 30 days and no later than 60 days from the date
such notice is mailed, pursuant to the procedures required by Section 3.08 and described in such
notice. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with


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the repurchase of the Notes as a result of a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the Change of Control provisions of
the Indenture, the Company shall comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under the Change of Control provisions of this
Indenture by virtue of such compliance.




          (b) On the Change of Control Payment Date, the Company shall, to the extent lawful:




          (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change
of Control Offer;




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




          (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an
Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being
purchased by the Company.




          (c) The Paying Agent will promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be
in a principal amount of $1,000 or an integral multiple thereof.




          (d) The Company shall publicly announce the results of the change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.




          (e) Prior to complying with the provisions of this covenant, but in any event no later than 30
days following a Change of Control, the Company shall either repay all outstanding Senior Debt or
obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Notes required by this covenant.




          (f) The Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under
such Change of Control Offer.




Section 4.15. Limitation on Senior Subordinated Debt.




          The Company shall not Incur any Indebtedness that is subordinate in right of payment to any
Senior Debt of the Company unless it ranks pari passu or subordinate in right of payment to the
Notes. No Guarantor shall Incur any Indebtedness that is subordinate or junior in right of payment
to the Senior Debt of such Guarantor unless it ranks pari passu or subordinate in right of payment
to such Guarantor’s Note Guarantee. For purposes of the foregoing, no

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Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness
of the Company or any Guarantor, as applicable, solely by reason of Liens or Guarantees arising or
created in respect of such other Indebtedness of the Company or any Guarantor or by virtue of the
fact that the holders of any secured Indebtedness have entered into intercreditor agreements giving
one or more of such holders priority over the other holders in the collateral held by them.




Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.




          (a) The Board of Directors of the Company may designate any Restricted Subsidiary of the
Company to be an Unrestricted Subsidiary; provided that:




          (i) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of
the Subsidiary being so designated shall be deemed to be an Incurrence of Indebtedness by the
Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation, and
such Incurrence of Indebtedness would be permitted under Section 4.09 and any lien on the property
of the Restricted Subsidiary will be permitted to exist under Section 4.12;




          (ii) the aggregate Fair Market Value of all outstanding Investments owned by the Company and
its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the
Company or any Restricted Subsidiary of any Indebtedness of such Subsidiary) shall be deemed to be
a Restricted Investment made as of the time of such designation and that such Investment would be
permitted under Section 4.07;




          (iii) the Subsidiary being so designated:





      (A) except as permitted under Section 4.11, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not Affiliates of
the Company;




      (B) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for
additional Equity Interests or (ii) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of operating
results; and




      (C) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted Subsidiaries,
except to the extent such Guarantee or credit support would be released upon such
designation; and



          (iv) no Default or Event of Default would be in existence following such designation.




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          (b) Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to
such designation and an Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by this Indenture. If, at any time, any Unrestricted
Subsidiary would fail to meet any of the preceding requirements and such failure continues for a
period of 30 days, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness, Investments, or Liens on the property, of such Subsidiary shall be
deemed to be Incurred or made by a Restricted Subsidiary of the Company as of such date and, if
such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date
under the Indenture, the Company shall be in default under this Indenture.




          (c) The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that:




          (i) such designation will be deemed to be an Incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation will only be permitted if such Indebtedness is permitted under Section 4.09;




          (ii) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed to be
made as of the time of such designation and such designation shall only be permitted if such
Investments would be permitted under Section 4.07;




          (iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time
of such designation would be permitted under Section 4.12; and




          (iv) no Default or Event of Default would be in existence following such designation.




Section 4.17. Payments for Consent.




     The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
the Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.



Section 4.18. Guarantees.




          (a) If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary (other than an Immaterial Subsidiary) on or after the Issue Date, then that newly
acquired or created Domestic Subsidiary must become a Guarantor of the Notes and execute a
supplemental indenture and deliver an Opinion of Counsel with respect
to such


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Guarantee. Any Immaterial Subsidiary that no longer meets the definition of Immaterial
Subsidiary must become a Guarantor of the Notes in accordance with Section 4.18(b).




          (b) The Company shall not permit any Domestic Subsidiary (including any Immaterial
Subsidiary), directly or indirectly, to Guarantee or pledge any assets to secure the payment of any
other Indebtedness of the Company or any other Restricted Subsidiary thereof unless such Restricted
Subsidiary is a Guarantor or simultaneously executes and delivers to the Trustee an Opinion of
Counsel and a supplemental indenture, in the form attached hereto as Exhibit E, providing for the
Guarantee of the payment of the Notes by such Restricted Subsidiary, which Guarantee will be senior
to, or pari passu with, such Subsidiary’s Guarantee of such other Indebtedness unless such other
Indebtedness is Senior Debt, in which case the Guarantee of the Notes may be subordinated to the
Guarantee of such Senior Debt to the same extent as the Notes are subordinated to such Senior Debt.




          (c) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets
to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person, other than the Company or another Guarantor, unless:




          (i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and




          (ii) either:





      (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is organized or existing under the laws of the United States, any state
thereof or the District of Columbia and assumes all the obligations of that
Guarantor under the Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture satisfactory to the Trustee; or




      (B) such sale or other disposition or consolidation or merger complies with
Section 4.10.



          (d) The Note Guarantee of a Guarantor shall be released:




          (i) in connection with any sale or other disposition of all of the Capital Stock of a
Guarantor to a Person that is not (either before or after giving effect to such transaction) a
Restricted Subsidiary of the Company, if the sale of all such Capital Stock of that Guarantor
complies with Section 4.10;




          (ii) if the Company properly designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary under this Indenture; or




          (iii) solely in the case of a Note Guarantee created pursuant to the second paragraph of this
covenant, upon the release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee pursuant to this covenant, except a discharge or release by or as a result of
payment under such Guarantee.





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Section 4.19.
Limitation on Issuances and Sales of Preferred Stock in Restricted
Subsidiaries.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, transfer,
convey, sell, lease or otherwise dispose of any Preferred Stock in any Restricted Subsidiary of the
Company that is not a Guarantor to any Person (other than the Company or a Restricted Subsidiary of
the Company), unless:



          (i) such transfer, conveyance, sale, lease or other disposition is of all the Equity Interest
in such Restricted Subsidiary owned by the Company and its Restricted Subsidiaries; and



          (ii) the cash Net Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Section 4.10.



          (b) The Company shall not permit any Restricted Subsidiary of the Company that is not a
Guarantor to issue any of its Preferred Stock (other than, if necessary, shares of its Capital
Stock constituting directors’ qualifying shares or issuances of shares of Capital Stock of foreign
Restricted Subsidiaries to foreign nationals, to the extent required by applicable law) to any
Person other than to the Company or a Restricted Subsidiary of the Company.



ARTICLE FIVE

SUCCESSORS



Section 5.01.
Merger, Consolidation or Sale of Assets.




          (a) The Company shall not, directly or indirectly (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving Person) or (2) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties and assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:




(i) either:




     (1) the Company is the surviving Person; or




     (2) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment,
transfer, conveyance or other disposition will have been made (i) is
a Person organized or existing under the laws of the United States,
any state thereof or the District of Columbia and (ii) assumes all
the obligations of the Company under the Notes, the Indenture and, to
the extent applicable, the Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the Trustee;



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      (ii) immediately after giving effect to such transaction no Default or Event of
Default exists;




      (iii) immediately after giving effect to such transaction on a pro forma basis,
the Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, conveyance
or other disposition will have been made, will be permitted to Incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a).




      (iv) each Guarantor, unless such Guarantor is the Person with which the Company
has entered into a transaction under this covenant, will have by amendment to its
Note Guarantee confirmed that its Note Guarantee will apply to the obligations of
the Company or the surviving Person in accordance with the Notes and the Indenture.




      (v) the Company delivers to the Trustee an Officers’ Certificate (attaching the
arithmetic computation to demonstrate compliance with Section 5.01(a)(iii) above)
and Opinion of Counsel, in each case stating that such transaction and such
agreement complies with this covenant and that all conditions precedent provided for
in this covenant relating to such transaction have been complied with.



          (b) The Company and its Restricted Subsidiaries may not, directly or indirectly, lease all or
substantially all the properties or assets of the Company and its Restricted Subsidiaries
considered as one enterprise, in one or more related transactions, to any other Person. Section
5.01(a)(iii) will not apply to any merger, consolidation or sale, assignment, transfer, conveyance
or other disposition of assets between or among the Company and any of its Restricted Subsidiaries.


Section 5.02.
Successor Corporation Substituted.




          Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company in accordance with Section
5.01, the successor corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, 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, assignment, conveyance or other disposition, the provisions of this Indenture referring to
the “Company” shall refer instead to the successor corporation and not to the Company), and may
exercise every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company in this Indenture. In the event of any such
transfer (other than any transfer by way of lease), the predecessor Company shall be released and
discharged from all liabilities and obligations in respect of the Notes and this Indenture and the
predecessor Company may be dissolved, wound up or liquidated at any time thereafter.



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ARTICLE SIX

DEFAULTS AND REMEDIES



Section 6.01.
Events of Default.




          (a) Each of the following is an Event of Default:



          (i) default for 30 days in the payment when due of interest on, or Additional Interest with
respect to, the Notes whether or not prohibited by Article Eleven of this Indenture;



          (ii) default in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Notes, whether or not prohibited by
Article Eleven of this Indenture;



          (iii) failure by the Company or any of its Restricted Subsidiaries to consummate a purchase of
the Notes when required by the provisions described under Section 4.14 or Section 4.10 or failure
to comply with Section 5.01;



          (iv) failure by the Company or any of its Restricted Subsidiaries for 60 days after written
notice by the Trustee or Holders representing 25% or more of the aggregate principal amount of
Notes outstanding to comply with any of the other agreements in the Indenture;



          (v) default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries
that together would constitute a Significant Subsidiary) (or the payment of which is Guaranteed by
the Company or any of its Restricted Subsidiaries) whether such Indebtedness or Guarantee now
exists, or is created after the Issue Date, if that default:




     (A) is caused by a failure to make any payment when due at the final maturity
of such Indebtedness (a ‘‘Payment Default’’); or




     (B) results in the acceleration of such Indebtedness prior to its express
maturity,



                    and, in each case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10.0 million or more;



          (vi) failure by the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary)
to pay final judgments (to the extent such judgments are not paid or covered by insurance provided
by a reputable carrier that has the ability to perform and has acknowledged coverage in writing)
aggregating in excess of $10.0 million, which judgments are not paid, discharged or stayed for a
period of 60 days;



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          (vii) except as permitted by this Indenture, any Note Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm
its obligations under its Note Guarantee; and



          (viii) the Company, any Guarantor or any Significant Subsidiary of the Company (or any
Restricted Subsidiaries that together would constitute a Significant Subsidiary) pursuant to or
within the meaning of Bankruptcy Law:




     (A) commences a voluntary case;




     (B) consents to the entry of an order for relief against it in an involuntary case;




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




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



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




      (A) is for relief against the Company, any Guarantor or any Significant
Subsidiary of the Company (or Restricted Subsidiaries that together would constitute
a Significant Subsidiary), in an involuntary case; or




      (B) appoints a custodian of the Company, any Guarantor or any Significant
Subsidiary of the Company (or Restricted Subsidiaries that together would constitute
a Significant Subsidiary) or for all or substantially all of the property of the
Company, any Guarantor or any of its Restricted Subsidiaries that is a Significant
Subsidiary (or Restricted Subsidiaries that together would constitute a Significant
Subsidiary); or




      (C) orders the liquidation of the Company, any Guarantor or any Significant
Subsidiary of the Company (or Restricted Subsidiaries that together would constitute
a Significant Subsidiary);


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



Section 6.02.
Acceleration.




          (a) In the case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company, any Guarantor or any Restricted Subsidiary that is a
Significant Subsidiary of the Company (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary), all outstanding Notes shall become due and payable
immediately without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding



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Notes may declare all the Notes to be due and payable immediately by notice in writing to the
Company specifying the event of default; provided, however, that so long as any Indebtedness
permitted to be Incurred pursuant to the Credit Agreement will be outstanding, that acceleration
will not be effective until the earlier of (1) an acceleration of Indebtedness under the Credit
Agreement; or (2) five Business Days after receipt by the Company, and Agent under the Credit
Agreement of written notice of the acceleration of the Notes.



          (b) In the case of any Event of Default occurring by reason of any willful action or inaction
taken or not taken by or on behalf of the Company with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon the acceleration of
the Notes. If an Event of Default occurs during any time that the Notes are outstanding, by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes, then the premium specified in
Section 3.07 will also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.


Section 6.03.
Other Remedies.




          (a) 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, interest and Additional Interest, if
any, with respect to the Notes or to enforce the performance of any provision of the Notes or this
Indenture.



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


Section 6.04.
Waiver of Past Defaults.




          Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to
the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences hereunder except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, interest or Additional Interest, if any, on, the
Notes, provided, however, that the Holders of a majority in principal amount of the Notes then
outstanding may rescind an acceleration and its consequences, including any related payment default
that resulted from such acceleration.



          The Company shall deliver to the Trustee an Officers’ Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such consents. In case
of any such waiver, the Company, the Trustee and the Holders shall be restored to their former
positions and rights under this Indenture and the Notes, respectively. This Section 6.04 shall be
in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes,



73









 








as permitted by the TIA. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


Section 6.05.
Control by Majority.




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


Section 6.06.
Limitation on Suits.




          (a) A Holder may not pursue any remedy with respect to this Indenture or the Notes or the Note
Guarantees unless:




     (i) the Holder gives the Trustee written notice of a continuing Event of Default;




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




     (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;




     (iv) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and




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



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


Section 6.07.
Rights of Holders of Notes to Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of, premium or Additional Interest, if any, or interest on, such
Note or to bring suit for the enforcement of any such payment, on or after the due date expressed
in the Notes, shall not be impaired or affected without the consent of the Holder.



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Section 6.08.
Collection Suit by Trustee.




          If an Event of Default specified in Section 6.01(a)(i) or (a)(ii) occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, interest and Additional
Interest, if any, remaining unpaid on, the Notes and interest on overdue principal and premium, if
any, and, to the extent lawful, interest and Additional Interest, if any, 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.
Trustee May File Proofs of Claim.




          The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
or any Guarantor (or any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other securities or 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. 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 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 6.10.
Priorities.




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




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




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, interest and Additional Interest, if any, ratably, without



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preference or priority of any kind, according to the amounts due and payable on the
Notes for principal, premium, if any, interest and Additional Interest, if any,
respectively; and




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



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


Section 6.11.
Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than
ten percent in principal amount of the then outstanding Notes.



ARTICLE SEVEN

TRUSTEE



Section 7.01.
Duties of Trustee.




          Except to the extent, if any, provided otherwise in the TIA (as from time to time in effect):



          (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, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



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



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     (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 that the Trustee was negligent in ascertaining the
pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (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) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss, costs, liability or expense
that might be incurred by it in connection with the request or direction.



          (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.


Section 7.02.
Certain 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.



          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel 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 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 Company shall be sufficient if signed by an Officer of the Company.



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



          (g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such
event is sent to the Trustee in accordance with Section 14.02, and such notice references the
Notes.


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 become a creditor of, or otherwise deal with, the Company or any of its Affiliates with the
same rights it would have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest as described in the TIA, it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.


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, it shall not be accountable for the Company’s use of the proceeds from
the Notes or any money paid to the Company or upon the Company’s direction under any provision of
this Indenture, it shall not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in connection with the sale of the Notes
or pursuant to this Indenture other than its certificate of authentication.


Section 7.05.
Notice of Defaults.




          If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default relating to the payment
of principal or interest or Additional Interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.


Section 7.06.
Reports by Trustee to Holders of the Notes.




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



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TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).



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


Section 7.07.
Compensation and Indemnity.




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



          (b) The Company and the Guarantors shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by either of the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be attributable to its
negligence, bad faith or willful misconduct. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder unless the failure to notify the Company impairs
the Company’s ability to defend such claim. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Company need not pay for any settlement made without its
consent.



          (c) The obligations of the Company and the Guarantors under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture and resignation of removal of the Trustee.



          (d) To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
Lien prior to the Notes on all money or property held or collected by the Trustee, except that held
in trust to pay principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture and resignation or removal of the Trustee.



          (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(a)(viii) and (ix) 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.



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


Section 7.08.
Replacement of Trustee.




          (a) 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.



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




     (i) the Trustee fails to comply with Section 7.10;




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




     (iii) a custodian or public officer takes charge of the Trustee or its property; or




     (iv) the Trustee becomes incapable of acting.



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



          (d) If a successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
principal amount of the then outstanding Notes may petition at the expense of the Company any court
of competent jurisdiction for the appointment of a successor Trustee.



          (e) 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, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



          (f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. 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. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.



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Section 7.09.
Successor Trustee by Merger, Etc.




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


Section 7.10.
Eligibility; Disqualification.




          There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trust powers, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition.



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


Section 7.11.
Preferential Collection of Claims Against Company.




          The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated therein. The Trustee hereby waives any right to set off any claim
that it may have against the Company in any capacity (other than as Trustee and Paying Agent)
against any of the assets of the Company held by the Trustee; provided, however, that if the
Trustee is or becomes a lender of any other Indebtedness permitted hereunder to be pari passu with
the Notes, then such waiver shall not apply to the extent of such Indebtedness.



ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01.
Option to Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at the option of the Board of Directors evidenced by a Board Resolution set
forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 be
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.


Section 8.02.
Legal Defeasance and Discharge.




          Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02,
the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be
deemed to have been discharged from its obligations with respect to all outstanding Notes and all
obligations of the Guarantors shall be deemed to have been discharged with respect to their
obligations under the Note Guarantees on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and
the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by
the outstanding Notes and Note Guarantees, respectively, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 and



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the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied
all their other obligations under such Notes, Note Guarantees and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.04, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, interest and Additional Interest, if any, on, such
Notes when such payments are due, (b) the Company’s obligations with respect to such Notes under
Article Two concerning issuing temporary Notes, registration of Notes and mutilated, destroyed,
lost or stolen Notes and the Company’s obligations under Section 4.02, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’
obligations in connection therewith and (d) this Article Eight. Subject to compliance with this
Article Eight, the Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03.


Section 8.03.
Covenant Defeasance.




          Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03,
the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.04, be released from their obligations under the covenants contained in Sections 3.08,
4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 5.01 and 12.04
on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter,
“Covenant Defeasance”), and all obligations of the Guarantors with respect to Guarantees
discharged, and the Notes and the Note Guarantees shall thereafter be deemed not “outstanding” for
the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes hereunder (it being understood that such Notes and Note
Guarantees shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Company
and the Guarantors may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 6.01, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04, Sections 6.01(a)(iii) through (vii) shall
not constitute Events of Default.


Section 8.04. Conditions to Legal or Covenant Defeasance.




          (a) The following shall be the conditions to the application of either Section 8.02 or 8.03 to
the outstanding Notes:




     (i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion



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of a nationally recognized firm of independent public accountants, to pay the principal
of, premium, interest and Additional Interest, if any, on, the outstanding Notes on the
Stated Maturity or on the applicable redemption date, as the case may be, and the Company
must specify whether the Notes are being defeased to maturity or to a particular redemption
date;




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




     (iii) in the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;




     (iv) no Default or Event of Default shall have occurred and be continuing either: (a)
on the date of such deposit; or (b) insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 123rd day after the
date of deposit (other than a Default resulting from the borrowing of funds to be applied to
such deposit);




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




     (vi) the Company must have delivered to the Trustee an Opinion of Counsel to the effect
that, (1) assuming no intervening bankruptcy of the Company or any Guarantor between the
date of deposit and the 123rd day following the deposit and assuming that no Holder or the
Trustee is deemed to be an “insider” of the Company under the United States Bankruptcy Code
and the New York Debtor and Creditor Law, and assuming that the deposit is not otherwise
deemed to be to or for the benefit of an “insider” of the Company under the United States
Bankruptcy Code and the New York Debtor and Creditor Law, and assuming that no Holder or the
Trustee is deemed to be an “initial transferee” or “mediate transferee” of a “transfer”
within the meaning of Section 550 of the United States Bankruptcy Code, after the 123rd day
following the deposit, the transfer of the trust funds pursuant to such deposit will not be
subject to avoidance pursuant to Section 547 of the United States Bankruptcy Code or Section
15 of the New York Debtor



83









 






and Creditor Law and (2) the creation of the defeasance trust does not violate the
Investment Company Act of 1940;




     (vii) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and




     (viii) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.


Section 8.05. Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.




          (a) Subject to Section 8.06, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal, premium and Additional Interest, if
any, and interest, but such money need not be segregated from other funds except to the extent
required by law.



          (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.04 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.



          (c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), 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 the Company.




          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, interest, or Additional Interest, if
any, on any Note and remaining unclaimed for two years after such principal, and premium, if any,
interest, or Additional Interest, if any, has become due and payable shall be paid to the Company
on its request or (if then held by the Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter look only to the Company for payment




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thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the reasonable expense of the Company cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining shall be repaid to
the Company.




Section 8.07. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03, 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 Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
and, in the case of a Legal Defeasance, the Guarantors’ obligations under their respective Note
Guarantees shall be revised and reinstated as though no deposit had occurred pursuant to Section
8.02, in each case until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01. Without Consent of Holders of Notes.




          (a) Notwithstanding Section 9.02, the Company, the Guarantors, and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder of a Note:




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




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




     (iii) to provide for the assumption of the Company’s or any Guarantor’s obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or substantially
all of the Company’s or such Guarantor’s assets;




     (iv) to make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not materially adversely affect the legal rights under this
Indenture of any such Holder, including the addition of any new Note Guarantee;




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




          (vi) to comply with Section 4.18, including to reflect the release of a Guarantee of
the Notes in accordance with this Indenture;




          (vii) to secure the Notes and/or Guarantees of the Notes;




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




          (ix) to evidence and provide for the acceptance of appointment by a successor Trustee;
or




          (x) to provide for the issuance of Additional Notes in accordance with this Indenture.




          Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amendment or supplement, and upon receipt by the Trustee of any documents requested under
Section 7.02(b), the Trustee shall join with the Company and the Guarantors in the execution of any
amendment or supplement authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained, unless such
amendment or supplement adversely affects the Trustee’s own rights, duties, liabilities 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 amendment or supplement.




Section 9.02. With Consent of Holders of Notes.




          (a) Except as otherwise provided in this Section 9.02, the Company, the Guarantors and the
Trustee may amend or supplement this Indenture or the Notes with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes),
and, subject to Sections 6.04 and 6.07, 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 Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).




          (b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, the Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to consent to such amendment, supplement or waiver, whether or not such
Holders remain Holders after such record date.




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          (c) Upon the request of the Company accompanied by a Board Resolution authorizing the
execution of any amendment, supplement or waiver, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02(b), the Trustee shall join with the
Company and the Guarantors in the execution of such amendment, supplement or waiver, unless such
amendment, supplement or waiver adversely affects the Trustee’s own rights, duties, liabilities 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 amendment or supplement.




          (d) It shall not be necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.




          (e) After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the
Notes then outstanding may waive compliance in a particular instance by the Company or any
Guarantor with any provision of this Indenture or the Notes. However, without the consent of each
Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):




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




     (ii) reduce the principal of or change the fixed maturity of any Note or alter the
provisions, or waive any payment, with respect to the redemption of the Notes other than
provisions relating to Sections 4.10, 4.14 and 5.01;




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




     (iv) waive a Default or Event of Default in the payment of principal of, premium, if
any, interest or Additional Interest, if any, on, the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal
amount of the Notes and a waiver of the payment default that resulted from such
acceleration);




     (v) make any Note payable in money other than U.S. dollars;




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




     (vii) release any Guarantor from any of its obligations under its Note Guarantee as
provided for in this Indenture, except in accordance with the terms of this Indenture;




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          (viii) impair the right to institute suit for the enforcement of any payment on or with
respect to the Notes or the Note Guarantees;




      (ix) except as otherwise permitted under Section 4.18, consent to the assignment or
transfer by the Company or any Guarantor of any of its rights or obligations under this
Indenture; and




          (x) make any change in the preceding amendment and waiver provisions.




          (f) Without the consent of the Holders of at least 75% of the principal amount of the Notes
then outstanding (including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), an amendment or waiver may not amend or modify
any of the provisions of this Indenture or the related definitions affecting the subordination or
ranking of the Notes or any Note Guarantee in any manner adverse to the holders of the Notes or any
Note Guarantee.




Section 9.03. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture or the Notes shall be set forth in a document
that complies with the TIA as then in effect.




Section 9.04. Revocation and Effect of Consents.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.




Section 9.05. Notation on or Exchange of Notes.




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




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




Section 9.06. Trustee to Sign Amendments, Etc.




          The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article
Nine if the amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign any amendment, supplement or
waiver until its Board of Directors approves it. In executing any amendment,




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supplement or waiver, the Trustee shall be entitled to receive and (subject to Section 7.01)
shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating
that the execution of such amendment, supplement or waiver is authorized or permitted by this
Indenture.




ARTICLE TEN

SATISFACTION AND DISCHARGE




Section 10.01. Satisfaction and Discharge.




          (a) This Indenture shall be discharged and shall cease to be of further effect as to all Notes
issued hereunder, when:




          (i) either:






       (A) all Notes that have been authenticated (except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or




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



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




     (iii) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and




     (iv) the Company has delivered irrevocable instructions to the Trustee under this
Indenture 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 Company must deliver an Officers’ Certificate and an Opinion of Counsel to
the Trustee stating that all conditions precedent to satisfaction and discharge have been
satisfied.




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          (b) Notwithstanding the above, the Trustee shall pay to the Company from time to time upon its
request any cash or Government Securities held by it as provided in this Section 10.01, which, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification delivered to the Trustee, are in excess of the amount that would then be
required to be deposited to effect a satisfaction and discharge under this Article Ten.




          (c) After the conditions to satisfaction and discharge contained in this Article Ten have been
satisfied, and the Company has paid or caused to be paid all other sums payable hereunder by the
Company, and delivered to the Trustee an Officers’ Certificate and Opinion of Counsel, each stating
that all conditions precedent to satisfaction and discharge have been satisfied, the Trustee upon
written request shall acknowledge in writing the discharge of the obligations of the Company and
the Guarantors under this Indenture (except for those surviving obligations specified in Section
10.04).




Section 10.02. Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.




          Subject to Section 10.03, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee pursuant to Section 10.01 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any,
interest and Additional Interest, if any, but such money need not be segregated from other funds
except to the extent required by law.




Section 10.03. Repayment to the Company.




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




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Section 10.04. Survival.




          In the event that the Company makes (or causes to be made) an irrevocable deposit with the
Trustee for the benefit of the Holders pursuant to Section 10.01(a)(i)(B) hereof, prior to the date
of maturity or redemption, as the case may be, the following provisions of this Indenture shall
survive until otherwise terminated or discharged hereunder:




     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, interest and Additional Interest, if any, on such Notes when
such payments are due from the trust;




          (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




          (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith; and




          (4) this Article 10.




ARTICLE ELEVEN

SUBORDINATION OF NOTES




Section 11.01. Agreement to Subordinate.




          The Company agrees, and each Holder by accepting a Note agrees, that the Indebtedness
evidenced by the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article Eleven, to the prior payment in full in cash or Cash Equivalents of all
Senior Debt of the Company, including Senior Debt of the Company incurred after the date hereof.




Section 11.02. Liquidation; Dissolution; Bankruptcy.




          The holders of Senior Debt of the Company shall be entitled to receive payment in full in cash
or Cash Equivalents of all Obligations due in respect of Senior Debt of the Company (including
interest after the commencement of any bankruptcy proceeding at the rate specified in the
documentation for the applicable Senior Debt of the Company) before the Holders of Notes shall be
entitled to receive any payment with respect to the Notes (except that Holders of Notes may receive
and retain Permitted Junior Securities and payments made from the trust pursuant to Article Eight),
in the event of any distribution to creditors of the Company in (a) any liquidation or dissolution
of the Company; (b) any bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property; (c) any assignment by the Company for the benefit of its
creditors; or (d) any marshaling of the Company’s assets and liabilities.




Section 11.03. Default on Designated Senior Debt.




          (a) The Company shall not make any payment in respect of the Notes (except in Permitted Junior
Securities or from the trust pursuant to Article Eight) if:




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          (i) a payment default on Designated Senior Debt of the Company occurs and is
continuing; or




     (ii) any other default (a “nonpayment default”) occurs and is continuing on any series
of Designated Senior Debt of the Company that permits holders of that series of Designated
Senior Debt of the Company to accelerate its maturity and the Trustee receives a notice of
such default (a “Payment Blockage Notice”) from a representative of the holders of such
Designated Senior Debt.




          (b) Payments on the Notes may and shall be resumed:




     (i) in the case of a payment default on Designated Senior Debt of the Company, upon the
date on which such default is cured or waived; and




     (ii) in case of a non-payment default or Designated Senior Debt of the Company, the
earliest of (x) the date on which such default is cured or waived, (y) 179 days after the
date on which the applicable Payment Blockage Notice is received and (z) the date the
Trustee receives notice from the representative for such Designated Senior Debt rescinding
the Payment Blockage Notice, unless the maturity of such Designated Senior Debt of the
Company has been accelerated.




          (c) No new Payment Blockage Notice may be delivered unless and until:




          (i) 360 days have elapsed since the delivery of the immediately prior Payment Blockage
Notice; and




     (ii) all scheduled payments of principal of, premium, if any, interest and Additional
Interest, if any, on, the Notes that have come due have been paid in full in cash or Cash
Equivalents.




          (d) No non-payment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice unless such default has been cured or waived for a period of not less than 90 days.




          (e) If the Trustee or any Holder of the Notes receives a payment in respect of the Notes
(except in Permitted Junior Securities or from the trust described under Article Eight) when (i)
the payment is prohibited by this Article Eleven and (ii) the Trustee or the Holder has actual
knowledge that the payment is prohibited, provided that such actual knowledge shall not be required
in the case of any payment default on Designated Senior Debt, the Trustee or the Holder, as the
case may be, shall hold the payment in trust for the benefit of the holders of Senior Debt of the
Company. Upon the proper written request of the holders of Senior Debt of the Company or if there
is any payment default on any Designated Senior Debt, the Trustee or the Holder, as the case may
be, shall deliver the amounts in trust to the holders of Senior Debt of the Company or their proper
representative.




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Section 11.04. Acceleration of Securities.




          If payment of the Notes is accelerated because of an Event of Default, the Company and the
Trustee shall promptly notify the holders of Senior Debt of the Company of the acceleration.




Section 11.05. When Distribution Must Be Paid Over.




          In the event that the Trustee or any Holder receives any payment of any Obligations with
respect to the Notes (except in Permitted Junior Securities or from the trust pursuant to Article
Eight) at a time when the Trustee or such Holder, as applicable, has actual knowledge that such
payment is prohibited by this Article Eleven, such payment shall be held by the Trustee or such
Holder, as applicable, in trust for the benefit of, and shall be paid forthwith over and delivered,
upon written request, to the holders of Senior Debt of the Company as their interests may appear or
their Representative under this Indenture or other agreement (if any) pursuant to which such Senior
Debt may have been issued, as their respective interests may appear, for application to the payment
of all Obligations with respect to such Senior Debt remaining unpaid to the extent necessary to pay
such Obligations in full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt.




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




Section 11.06. Notice by the Company.




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




Section 11.07. Subrogation.




          After all Senior Debt of the Company is paid in full and until the Notes are paid in full,
Holders of Notes shall be subrogated (equally and ratably with all other Indebtedness pari passu
with the Notes) to the rights of holders of such Senior Debt to receive distributions applicable to
such Senior Debt to the extent that distributions otherwise payable to the Holders of Notes have
been applied to the payment of such Senior Debt. A distribution made under this Article Eleven to
holders of Senior Debt of the Company that otherwise would have been made to Holders of Notes is
not, as between the Company and Holders, a payment by the Company on the Notes.




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Section 11.08. Relative Rights.




          This Article Eleven defines the relative rights of Holders of Notes and holders of Senior Debt
of the Company. Nothing in this Indenture shall:




          (a) impair, as between the Company and Holders of Notes, the obligation of the Company,
which is absolute and unconditional, to      make payments on the Notes in accordance with the
terms under the Notes and this Indenture;




     (b) affect the relative rights of Holders of Notes and creditors of the Company other
than their rights in relation to holders of Senior Debt of the Company; or




     (c) prevent the Trustee or any Holder of Notes from exercising its available remedies
upon a Default or Event of Default, subject      to the rights of holders and owners of Senior
Debt of the Company to receive distributions and payments otherwise payable to      Holders of
Notes.




          If the Company fails because of this Article Eleven to make a payment on the Notes in
accordance with the terms under the Notes and this Indenture, the failure is still a Default or
Event of Default.




Section 11.09. Subordination May Not Be Impaired by the Company.




          No right of any holder of Senior Debt of the Company to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Company
or any Holder or by the failure of the Company or any Holder to comply with this Indenture.




Section 11.10. Distribution or Notice to Representative.




          Whenever a distribution is to be made or a notice is to be given to holders of Senior Debt of
the Company, the distribution may be made and the notice may be given to their Representative (if
any).




          Upon any payment or distribution of assets of the Company referred to in this Article Eleven,
the Trustee and the Holders of Notes shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders of Notes for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of the Company and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this
Article Eleven.




Section 11.11. Rights of Trustee and Paying Agent.




          Notwithstanding this Article Eleven or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Trustee, and the Trustee and the Paying Agent may




94









 







continue to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such payment written notice
of facts that would cause the payment of any Obligations with respect to the Notes to violate this
Article Eleven. Only the Company or a Representative may give the notice. Nothing in this Article
Eleven shall impair the claims of, or payments to, the Trustee under or pursuant to Section 7.07.




          The Trustee in its individual or any other capacity may hold Senior Debt of the Company with
the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.




Section 11.12. Authorization to Effect Subordination.




          Each Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the Trustee
on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article Eleven, and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in Section 6.09 at least
30 days before the expiration of the time to file such claim, the lenders under the Credit
Agreement are hereby authorized to file an appropriate claim for and on behalf of the Holders of
the Notes.




ARTICLE TWELVE

NOTE GUARANTEES




Section 12.01. Guarantee.




          (a) Subject to this Article Twelve, each of the Guarantors hereby, jointly and severally, and
fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (i) the principal of, premium, if any, interest and Additional Interest, if any,
on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if any, interest and
Additional Interest, if any, on, the Notes, if lawful (subject in all cases to any applicable grace
period provided herein), and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, the same will 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 immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.




          (b) Each of the Guarantors hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes with respect to any




95









 







provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Subject to Section 6.06, each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that the Note Guarantees provided
for herein shall not be discharged except by complete performance of the obligations contained in
the Notes and this Indenture.




          (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or
such Holder, the Note Guarantees provided for herein, to the extent theretofore discharged, shall
be reinstated in full force and effect.




          (d) 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 Six for the purposes of the
Note Guarantees provided for herein, 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 Six, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Note Guarantees provided for herein. 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 Note Guarantees provided for herein.




Section 12.02. 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 Note Guarantee of such Guarantor not constitute (i) 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 the Note Guarantee of such Guarantor or (ii) an unlawful distribution under any
applicable state law prohibiting shareholder distributions by an insolvent subsidiary to the extent
applicable to the Note Guarantee of such Guarantor. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each
Guarantor will be limited to the maximum amount as will, after giving effect to 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 Twelve, result in the obligations of such Guarantor under its Note Guarantee not
constituting a fraudulent transfer or conveyance or such an unlawful distribution.




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Section 12.03. Note Guarantees under Indenture.




          (a) If an Officer of a Guarantor whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates the Notes, the Note Guarantee of such Guarantor
provided for herein shall be valid nevertheless.




          (b) The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantees provided for herein on behalf of the Guarantors.




          (c) If required by Section 4.18, the Company shall cause its Subsidiaries to execute
supplemental indentures to this Indenture providing for additional Note Guarantees in accordance
with Section 4.18 and this Article Twelve, to the extent applicable.




Section 12.04. Guarantors May Consolidate, Etc., on Certain Terms.




          (a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets
to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving
Person), another Person, other than the Company or another Guarantor, unless:




          (i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and




          (ii) either:





     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) is organized or existing under the laws of the United States, any state
thereof or the District of Columbia and assumes all the obligations of that
Guarantor under the Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture satisfactory to the Trustee; or




     (B) such sale or other disposition or consolidation or merger complies with
Section 4.10.



          (b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by a Guarantor, such
successor Person shall succeed to and be substituted for a Guarantor with the same effect as if it
had been named herein as a Guarantor. All the Note Guarantees so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.




          (c) Except as set forth in Article Five, and notwithstanding clauses (i) and (ii) of Section
12.04(a), nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall




97









 







prevent any sale or other disposition of all or substantially all of the assets of a Guarantor
to the Company or another Guarantor.




Section 12.05. Release of Guarantor.




          (a) The Note Guarantee of a Guarantor shall be released:




      (i) in connection with any sale or other disposition of all of the Capital Stock of a
Guarantor to a Person that is not (either before or after giving effect to such transaction)
a Restricted Subsidiary of the Company, if the sale of all such Capital Stock of that
Guarantor complies with Section 4.10;




      (ii) if the Company properly designates any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary under this Indenture;




      (iii) upon satisfaction and discharge of the Notes as set forth under Section 10.01 or
upon defeasance of the Notes as set forth under Article Eight; or




      (iv) solely in the case of a Note Guarantee created pursuant to Section 4.18, upon the
release or discharge of the Guarantee which resulted in the creation of such Note Guarantee
pursuant to Section 4.18, except a discharge or release by or as a result of payment under
such Guarantee.




          (b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of, premium, if any, interest and Additional Interest, if
any, on, the Notes and for the other obligations of any Guarantor under this Indenture as provided
in this Article Twelve.




ARTICLE THIRTEEN

SUBORDINATION OF NOTE GUARANTEES




Section 13.01. Agreement To Subordinate.




          Each Guarantor agrees, and each Holder by accepting a Note agrees, that the Indebtedness
evidenced by such Guarantor’s Note Guarantee is subordinated in right of payment, to the extent and
in the manner provided in this Article Thirteen, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt of such Guarantor, including Senior Debt of such Guarantor incurred
after the date hereof.




Section 13.02. Liquidation, Dissolution, Bankruptcy.




          The holders of Senior Debt of a Guarantor shall be entitled to receive payment in full in cash
or Cash Equivalents of all Obligations due in respect of Senior Debt of such Guarantor (including
interest after the commencement of any bankruptcy proceeding at the rate specified in the
documentation for the applicable Senior Debt of such Guarantor) before the Holders shall be
entitled to receive any payment with respect to such Guarantor’s Note Guarantee (except that
Holders may receive and retain (i) Equity Interests in such Guarantor and (ii) debt securities of
such Guarantor that are subordinated to all Senior Debt of such Guarantor




98









 







to the same extent as, or to a greater extent than, the Notes and the Note Guarantees are
subordinated to Senior Debt under the Indenture), in the event of any distribution to creditors of
such Guarantor in (a) any liquidation or dissolution of such Guarantor; (b) any bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such Guarantor or its
property; (c) any assignment by such Guarantor for the benefit of its creditors; or (d) any
marshaling of such Guarantor’s assets and liabilities.




Section 13.03. Default on Designated Senior Debt of Guarantor.




          (a) None of the Guarantors shall make any payment in respect of its Note Guarantee (except in
(i) Equity Interests in such Guarantor and (ii) debt securities of such Guarantor that are
subordinated to all Senior Debt of such Guarantor to the same extent as, or to a greater extent
than, the Notes and the Note Guarantees are subordinated to Senior Debt under the Indenture) if:




          (i) a payment default on Designated Senior Debt of such Guarantor occurs and is
continuing; or




     (ii) any other default occurs and is continuing on any series of Designated Senior Debt
of such Guarantor that permits holders of that series of Designated Senior Debt of such
Guarantor to accelerate its maturity and the Trustee receives a Payment Blockage Notice from
a representative of the holders of such Designated Senior Debt.




          (b) Payments by a Guarantor pursuant to its Note Guarantee may and shall be resumed:




      (i) in the case of a payment default on Designated Senior Debt of such Guarantor, upon
the date on which such default is cured or waived; and




      (ii) in case of a non-payment default on Designated Senior Debt of such Guarantor, the
earliest of (x) the date on which such default is cured or waived, (y) 179 days after the
date on which the applicable Payment Blockage Notice is received and (z) the date the
Trustee receives notice from the representative for such Designated Senior Debt rescinding
the Payment Blockage Notice, unless the maturity of such Designated Senior Debt of such
Guarantor has been accelerated.




          (c) No new Payment Blockage Notice may be delivered unless and until:




          (i) 360 days have elapsed since the delivery of the immediately prior Payment Blockage
Notice; and




      (ii) all scheduled payments of principal of, premium, if any, interest and Additional
Interest, if any, on, the Notes that have come due have been paid in full in cash.




          (d) No non-payment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent





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Payment Blockage Notice unless such default has been cured or waived for a period of not less than 90 days.




          (e) If the Trustee or any Holder receives a payment from any Guarantor in respect of its Note
Guarantee (except in (i) Equity Interests in such Guarantor and (ii) debt securities of such
Guarantor that are subordinated to all Senior Debt of such Guarantor to the same extent as, or to a
greater extent than, the Notes and the Note Guarantees are subordinated to Senior Debt under the
Indenture) when (i) the payment is prohibited by this Article Thirteen and (ii) the Trustee or the
Holder has actual knowledge that the payment is prohibited, provided that such actual knowledge
shall not be required in the case of any payment default on Designated Senior Debt of such
Guarantor, the Trustee or the Holder, as the case may be, shall hold the payment in trust for the
benefit of the holders of Senior Debt of such Guarantor. Upon the proper written request of the
holders of Senior Debt of such Guarantor or if there is any payment default on any Designated
Senior Debt of such Guarantor, the Trustee or the Holder, as the case may be, shall deliver the
amounts in trust to the holders of Senior Debt of such Guarantor or their proper representative.



Section 13.04. Demand for Payment.




          If a demand for payment is made on a Guarantor pursuant to Article Twelve of this Indenture,
the Trustee shall promptly notify the holders of Senior Debt of such Guarantor (or their
representatives) of such demand.



Section 13.05. When Distribution Must Be Paid Over.




          In the event that the Trustee or any Holder receives any payment of any Obligations with
respect to any Note Guarantee (except that Holders may receive and retain (i) Equity Interests in
such Guarantor and (ii) debt securities of such Guarantor that are subordinated to all Senior Debt
of such Guarantor to the same extent as, or to a greater extent than, the Notes and the Note
Guarantees are subordinated to Senior Debt under the Indenture) at a time when the Trustee or such
Holder, as applicable, has actual knowledge that such payment is prohibited by this Article
Thirteen, such payment shall be held by the Trustee or such Holder, as applicable, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written request, to
the holders of Senior Debt of the applicable Guarantor as their interests may appear or their
Representative under this Indenture or other agreement (if any) pursuant to which such Senior Debt
may have been issued, as their respective interests may appear, for application to the payment of
all Obligations with respect to such Senior Debt remaining unpaid to the extent necessary to pay
such Obligations in full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt.




          With respect to the holders of Senior Debt of any Guarantor, the Trustee undertakes to perform
only such obligations on the part of the Trustee as are specifically set forth in this Article
Thirteen, and no implied covenants or obligations with respect to the holders of such Senior Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of any Guarantor, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of Holders or such Guarantor or
any other Person money or assets to which any holders of such Senior Debt




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shall be entitled by
virtue of this Article Thirteen, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.



Section 13.06. Notice by the Guarantors.




          Each Guarantor shall promptly notify the Trustee and the Paying Agent in writing of any facts
known to such Guarantor that would cause a payment of any Obligations with respect to its Note
Guarantee to violate this Article Thirteen, but failure to give such notice shall not affect the
subordination of the Note Guarantee of such Guarantor to its Senior Debt as provided in this
Article Thirteen.



Section 13.07. Subrogation.




          After all Senior Debt of a Guarantor is paid in full and until the Notes are paid in full,
Holders shall be subrogated (equally and ratably with all other Indebtedness pari passu with the
Note Guarantees) to the rights of holders of such Senior Debt to receive distributions applicable
to such Senior Debt to the extent that distributions otherwise payable to the Holders have been
applied to the payment of such Senior Debt. A distribution made under this Article Thirteen to the
holders of Senior Debt of a Guarantor which otherwise would have been made to Holders is not, as
between the such Guarantor and Holders, a payment by such Guarantor on its Note Guarantee.



Section 13.08. Relative Rights.




          This Article Thirteen defines the relative rights of Holders and holders of Senior Debt of a
Guarantor. Nothing in this Indenture shall:





     (a) impair, as between such Guarantor and Holders, the obligation of such Guarantor,
which is absolute and unconditional, to make payments under its Note Guarantee in accordance
with the terms under this Indenture;




     (b) affect the relative rights of Holders and creditors of such Guarantor other than
their rights in relation to the holders of Senior Debt of such Guarantor; or




     (c) prevent the Trustee or any Holder from exercising its available remedies upon a
default by such Guarantor under its Note Guarantee, subject to the rights of holders and
owners of Senior Debt of such Guarantor to receive distributions and payments otherwise
payable to the Holders.



          If a Guarantor fails because of this Article Thirteen to make a payment under its Note
Guarantee in accordance with the terms under this Indenture, the failure is still a Default or
Event of Default.



Section 13.09. Subordination May Not Be Impaired by Guarantor.




          No right of any holder of Senior Debt of any Guarantor to enforce the subordination of the
Note Guarantee of such Guarantor shall be impaired by any act or failure to




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act by such Guarantor
or any Holder or by the failure of such Guarantor or any Holder to comply with this Indenture.



Section 13.10. Distribution or Notice to Representative.




          Whenever a distribution is to be made or a notice is to be given to holders of Senior Debt of
any Guarantor, the distribution may be made and the notice may be given to their Representative (if
any).




          Upon any payment or distribution of assets of any Guarantor referred to in this Article
Thirteen, the Trustee and the Holders shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in such distribution,
the holders of Senior Debt of such Guarantor and other Indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Thirteen.



Section 13.11. Rights of Trustee and Paying Agent.




          Notwithstanding this Article Thirteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts that would prohibit the
making of any payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on any Note Guarantee, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such payment written notice
of facts that would cause the payment of any Obligations with respect to such Note Guarantee to
violate this Article Thirteen. Only the Company, a Guarantor or a Representative may give the
notice. Nothing in this Article Thirteen shall impair the claims of, or payments to, the Trustee
under or pursuant to Section 7.07.




          The Trustee in its individual or any other capacity may hold Senior Debt of any Guarantor with
the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.



Section 13.12. Authorization to Effect Subordination.




          Each Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the Trustee
on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article Thirteen, and appoints the Trustee to act as such
Holder’s attorney-in-fact for any and all such purposes. If the Trustee does not file a proper
proof of claim or proof of debt in the form required in any proceeding referred to in Section 6.09
at least 30 days before the expiration of the time to file such claim, the lenders under the Credit
Agreement are hereby authorized to file an appropriate claim for and on behalf of the Holders of
the Notes.




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Section 13.13. Reliance by Holders of Senior Debt of Guarantors on Subordination
Provisions.




          Each Holder by accepting a Note acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to each holder of any
Senior Debt of any Guarantor, whether such Senior Debt was created or acquired before or after the
issuance of the Notes, to acquire and continue to hold, such Senior Debt and such holder of Senior
Debt shall be deemed conclusively to have relied on such subordination provisions in acquiring and
continuing to hold such Senior Debt.




ARTICLE FOURTEEN

MISCELLANEOUS



Section 14.01. Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA Section 318(c), the imposed duties shall control.



Section 14.02. Notices.




          (a) Any notice or communication by the Company or any Guarantor, on the one hand, or the
Trustee, on the other hand, to the other is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the others’ address:



          
If to the Company and/or any Guarantor:



          Cardtronics, Inc.

          3110 Hayes Road

           Suite 300

           Houston, TX 77082

           Facsimile: (281) 8982-0151

           Attention: Chief Financial Officer



          with a copy to:



          Vinson & Elkins LLP

           First City Tower

           1001 Fannin Street, Suite 2300

           Houston, TX 77002

           Facsimile: (713) 615-5651

           Attention: David Oelman




          If to the Trustee:



          Wells Fargo Bank, National Association

          505 Main Street, Suite 301

          Fort Worth, TX 76102
Facsimile: (817) 885-8650

          Attention: Corporate Trust Administration




103









 









          (b) The Company, the Guarantors or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.




          (c) 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; three Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied;
and the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.




          (d) Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication
shall also be so mailed to any Person described in TIA Section 313(c), to the extent required
by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.




          (e) Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance on such waiver.




          (f) In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.




          (g) If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.




          (h) If the Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.



Section 14.03. Communication by Holders of Notes with Other Holders of Notes.




          Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).



Section 14.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




104









 









     (i) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 14.05) 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




     (ii) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 14.05) stating that, in the opinion
of such counsel (who may rely upon an Officers’ Certificate as to matters of fact), all such
conditions precedent and covenants have been satisfied.


Section 14.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall
comply with the provisions of TIA Section 314(e) and shall include:





     (i) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (ii) 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;




     (iii) 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




     (iv) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.


Section 14.06. Rules by Trustee and Agents.




          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 14.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.




          No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws.




105









 







Section 14.08. Governing Law.




          THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE
NOTES.



Section 14.09. Consent to Jurisdiction.




          Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of the State of New York
in each case located in the City of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth above shall be
effective service of process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,
action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and
agree not to plead or claim in any such court has been brought in an inconvenient forum.



Section 14.10. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or any of its Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.



Section 14.11. Successors.




          All agreements of the Company 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 such Guarantor’s successors, except as otherwise provided in
Section 12.04.



Section 14.12. Severability.




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



Section 14.13. 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 the same agreement.



Section 14.14. 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 the Holders may be embodied in and




106









 







evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company if made in the manner provided in this Section
14.14.




          (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 a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such witness, notary or officer the execution
thereof. Where such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof of authority. 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 which the Trustee deems sufficient.




          (c) Notwithstanding anything to the contrary contained in this Section 14.14, the principal
amount and serial numbers of Notes held by any Holder, and the date of holding the same, shall be
proved by the register of the Notes maintained by the Registrar as provided in Section 2.04.




          (d) If the Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by
or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of Holders generally in
connection therewith or the date of the most recent list of Holders forwarded to the Trustee prior
to such solicitation pursuant to Section 2.06 and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the then outstanding Notes have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the then outstanding Notes shall be computed as
of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.




          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Note shall bind every future Holder of the same Note and the Holder of




107









 







every Note
issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.




          (f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself 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.



Section 14.15. Benefit of Indenture.




          Nothing in this Indenture, the Notes or the Note Guarantees, express or implied, shall give to
any Person, other than the parties hereto, any Paying Agent, any Registrar and its successors
hereunder, and the Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



Section 14.16. 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.




[SIGNATURE PAGES FOLLOW]





108









 








          IN WITNESS WHEREOF, the parties have executed this Indenture as of August 12, 2005.




	 	 	 	 	 	 	 
	 	 	CARDTRONICS, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ JACK ANTONINI	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Jack Antonini	 	 
	 

	 	 	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	CARDTRONICS GP, INC., a
Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ JACK ANTONINI	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Jack Antonini	 	 
	 

	 	 	 	Title: President	 	 
	 
	 	 	 	 	 	 
	 	 	CARDTRONICS LP, INC., a
Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ PETER J. WINNINGTON	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Peter J. Winnington	 	 
	 

	 	 	 	Title: President	 	 
	 
	 	 	 	 	 	 
	 	 	CARDTRONICS, LP, a Delaware partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ JACK ANTONINI	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Jack Antonini	 	 
	 

	 	 	 	Title: President	 	 






1









 






	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL	 	 
	 	 	ASSOCIATION, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ MELISSA SCOTT	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Melissa Scott	 	 
	 

	 	Title: Vice President	 	 






2









 






EXHIBIT A




[Face of Note]



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 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER,
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT





     (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY




     (i)(a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS),




     (ii) TO THE ISSUER, OR




     (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE



1









 







SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND




(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.”



[Additional language for Regulation S Note to be inserted after paragraph 1]



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




2









 








CUSIP 14161HAA61




	 	 	 
	 

	 	U14148AA52
	No.

	 	**$                    **






CARDTRONICS, INC.




9 1/4% SENIOR SUBORDINATED NOTES DUE 2013




Issue Date:




          Cardtronics, Inc., a Delaware corporation (the “Company,” which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to pay to CEDE & CO., or
its registered assigns, the principal sum of $200,000,000 on August 15, 2013.



Interest Payment Dates: February 15 and August 15, commencing February 15, 2006.



Record Dates: February 1 and August 15.




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




[SIGNATURE PAGE FOLLOWS]






 




			
	1	 	Sold in reliance in Rule 144A
	 
	2	 	Sold in reliance on Regulation S




3









 










          IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officer.




	 	 	 	 	 	 	 
	 	 	CARDTRONICS, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






4









 






(Trustee’s Certificate of Authentication)



This is one of the 9 1/4% Senior Subordinated Notes due 2013 described in the within-mentioned
Indenture.



Dated:
[•], 20[•]




	 	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






5









 






[Reverse Side of Note]




CARDTRONICS, INC.




9 1/4% Senior Subordinated Notes due 2013




          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




          1. Interest. The Company promises to pay interest on the principal amount of this Note at 9
1/4% per annum from the date hereof until maturity and shall pay the Additional Interest, if any,
payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company
shall pay interest and Additional Interest, if any, semi-annually in arrears on February 15 and
August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the date of original
issuance; provided that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further that the first Interest Payment Date shall be February 15, 2006. The Company
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal from time to time on demand at a rate that is the rate then in effect; it shall
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.




          2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest)
and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of
business on the record date immediately preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date, except as provided in
Section 2.13 of the Indenture with respect to defaulted interest. If a Holder has given wire
transfer instructions to the Company, the Company shall pay all principal, premium, if any,
interest and Additional Interest, if any, on that Holder’s Notes in accordance with those
instructions. All other payments on the Notes shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in the register of
Holders. Such payment shall be in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.




          3. Paying Agent and Registrar. Initially, the Trustee under the Indenture shall act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without prior notice to
any Holder. The Company or any of its Subsidiaries may act in any such capacity.




6









 








          4. Indenture. The Company issued the Notes under an Indenture dated as of August 12, 2005
(“Indenture”) among the Company, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Indenture pursuant to which this Note is issued
provides that an unlimited aggregate principal amount of Additional Notes may be issued thereunder.




          5. Optional Redemption. (a) Except as set forth in paragraphs 5(b) and(c) below, the Company
shall not have the option to redeem the Notes prior to August 15, 2009. On or after August 15,
2009, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60
days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Additional Interest, if any, thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on August 15 of the years
indicated below:




	 	 	 	 	 
	Year	 	Percentage	 
	2009
	 	 	104.625	%
	2010
	 	 	102.313	%
	2011 and thereafter
	 	 	100.000	%






          (b) At any time prior to August 15, 2008, the Company may redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture (including any Additional Notes) at a
redemption price of 109.250% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the applicable redemption date, with the net cash proceeds
of one or more Equity Offerings; provided that (1) at least 65% of the aggregate principal amount
of Notes issued under the Indenture (including any Additional Notes) remains outstanding
immediately after the occurrence of such redemption, excluding Notes held by the Company or its
Affiliates; and (2) the redemption must occur within 45 days of the date of the closing of such
Equity Offering.




          (c) At any time prior to August 15, 2009, the Company may redeem all or a part of the Notes
upon not less than 30 nor more than 60 days’ prior notice at a redemption price equal to the sum of
(i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, to the date of
redemption.




          6. Repurchase at Option of Holder. (a) In connection with one or more Asset Sales that result
in an aggregate unutilized Excess Proceeds equal to or in excess of $10.0 million, the Company
shall be required to make an Asset Sale Offer on the terms set forth in the Indenture.




          (b) If a Change of Control occurs, each Holder of Notes shall have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple




7









 







thereof) of that Holder’s Notes pursuant to a Change of Control Offer on the terms set forth
in the Indenture.




          7. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The transfer
of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company is not required to transfer or exchange any Note
selected for redemption. Also, the Company is not required to transfer or exchange any Note (1) for
a period of 15 days before a selection of Notes to be redeemed or (2) tendered and not withdrawn in
connection with a Change of Control Offer or an Asset Sale Offer. Transfer may be restricted as
provided in the Indenture.




          8. Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for
all purposes.




          9. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes), and any existing
default or compliance with any provision of the Indenture or the Notes may be waived with the
consent of the Holders of a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to, among other things, cure any ambiguity defect or inconsistency, or make
any change that does not adversely affect the legal rights under the Indenture of any such Holder.




          10. Defaults and Remedies. The Notes will have Events of Default and related remedies
provisions set forth in Article Six of the Indenture.




          11. Trustee Dealings with Company. The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may become a creditor of, or otherwise deal with the
Company or any of its Affiliates, with the same rights it would have if it were not Trustee.




          12. No Recourse Against Others. No director, officer, employee, incorporator, stockholder,
member, manager or partner of the Company or any Guarantor, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. This
waiver and release are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.




          13. Authentication. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.




8









 








          14. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration
Rights Agreement.




          15. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.




          16. Note Guarantees. The Company’s obligations under the Notes are fully and unconditionally
guaranteed, jointly and severally, by the Guarantors.




          17. Copies of Documents. The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to:



Cardtronics, Inc.

3110 Hayes Road

Houston TX 77802

Facsimile: (281) 892-0151

Attention: Chief Financial Officer




          18. Subordination. The Notes and the Note Guarantees are subordinated in right of payment in
the manner and to the extent set forth in the Indenture.




9









 








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 Company. The agent may substitute another to act for
him.




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

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






Signature Guarantee*:                                                             



* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




10









 








OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:




o Section 4.10       o Section 4.14




          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:




$                                        




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

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






	 	 	 	 	 
	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 





Signature Guarantee*:                                         





	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).




11









 











[To be inserted for Rule 144A Global Note]




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




          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 Note or Definitive Note for an
interest in this Global Note, have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	Signature of	 
	 	 	Amount of Decrease in	 	 	Amount of Increase in	 	 	of this Global Note	 	 	Authorized Signatory	 
	 	 	Principal Amount	 	 	Principal Amount	 	 	Following such	 	 	of Trustee or	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	decrease (or increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





[To be inserted for Regulation S Global Note]




SCHEDULE OF EXCHANGES OF REGULATION S GLOBAL NOTE




          The following exchanges of a part of this Regulation S Global Note for an interest in another
Global Note or of other Restricted Global Notes for an interest in this Regulation S Global Note,
have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	Signature of	 
	 	 	Amount of Decrease in	 	 	Amount of Increase in	 	 	of this Global Note	 	 	Authorized Signatory	 
	 	 	Principal Amount	 	 	Principal Amount	 	 	Following such	 	 	of Trustee or	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	decrease (or increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






12









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Cardtronics, Inc.

3110 Hayes Road

Houston, TX 77802

Attention: Chief Financial Officer




Wells Fargo Bank, National Association

[Address]




Attention:
[•]




          Re: 9 1/4% Senior Subordinated Notes due 2013




          Reference is hereby made to the Indenture, dated as of August 12, 2005 (the “Indenture”),
among Cardtronics, Inc. a Delaware corporation(the “Company”) , the Guarantors, and Wells Fargo
Bank, National Association, a nationally chartered banking association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.




                                                                       (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                                         in such
Note[s] or interests (the “Transfer”), to                                                              (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:




[CHECK ALL THAT APPLY]




     o 1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion, and such Person
and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.



     o 2. Check if Transferee will take delivery of a beneficial interest in a Legended
Regulation S Global Note, or a Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the



1









 




Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and any Person acting
on its behalf reasonably believed and believes that the Transferee was outside the United States or
(y) the transaction was executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person. 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 Private Placement Legend
printed on the Legended Regulation S Global Note and/or the Definitive Note and in the Indenture
and the Securities Act.




     o 3. Check and complete if Transferee will take delivery of a Restricted Definitive Note
pursuant to any provision of the Securities Act other than Rule 144, Rule 144A or Regulation S.
The Transfer is being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and
in accordance with the Securities Act and any applicable blue sky securities laws of any state of
the United States, and accordingly the Transferor hereby further certifies that (check one):



     o (a) such Transfer is being effected to the Company or a subsidiary thereof; or



     o (b) such Transfer is being effected to an Institutional Accredited Investor and pursuant to an
exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Definitive Notes and in the Indenture and the Securities
Act.



          4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.




     o (a) Check if Transfer is Pursuant to Rule 144. (i) The Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the



2









 




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 or Restricted Definitive Notes and in the Indenture.




     o (b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under 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, in the case of a transfer from a Restricted Global Note
or a Restricted Definitive Note, the Transferor hereby further certifies that (a) the Transfer is
not being made to a person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (b) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (c) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (d) the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person, 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.



     o (c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



3









 





     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	By:	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	 Name:	 	 	 	 	 	 	 	 
	 

	 	 	 	 Title:	 	 	 	 	 	 	 	 






4









 






ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]




	 	 	 	 	 	 	 
	 

	 	o
	 	(a)
	 	a beneficial interest in the:
	 
	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	144A Global Note (CUSIP                                         ); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Regulation S Global Note (CUSIP                                         ); or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(b)
	 	a Restricted Definitive Note.







	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]




	 	 	 	 	 	 	 
	 

	 	o
	 	(a)
	 	a beneficial interest in the:
	 
	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	144A Global Note (CUSIP                                         ); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Regulation S Global Note (CUSIP                                         ); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	Unrestricted Global Note (CUSIP                                         ); or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(b)
	 	a Restricted Definitive Note; or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(c)
	 	an Unrestricted Definitive Note,





in accordance with the terms of the Indenture.




5









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Cardtronics, Inc.

3110 Hayes Road

Houston, TX 77802

Attention: Chief Financial Officer




Wells Fargo Bank, National Association

[Address]




Attention:
[•]




          Re: 9 1/4% Senior Subordinated Notes due 2013




          Reference is hereby made to the Indenture, dated as of August 12, 2005 (the “Indenture”),
among Cardtronics, Inc. a Delaware corporation (the “Company”), the Guarantors and Wells Fargo
Bank, National Association, a nationally chartered banking association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.




                                                                       (the “Owner”) owns and proposes to exchange the Note[s] or interest
in such Note[s] specified herein, in the principal amount of $                                         in such Note[s] or
interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:




          1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note
for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note




     o (a) Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note 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.



     o (b) Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the



1









 




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.




     o (c) Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.



     o (d) Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In
connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.



          2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes




     o (a) Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own 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.



     o (b) Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] :




	 	 	 	o 144A Global Note:
	 
	 	 	 	o Regulation S Global Note:




2









 










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 Company.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	[Insert Name of Transferor]
	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	By: 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 

	 	 	 Name:	 	 	 	 	 	 	 	 
	 

	 	 	 Title:	 	 	 	 	 	 	 	 






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EXHIBIT D




FORM OF NOTATION OF GUARANTEE




          For value received, each Guarantor (which term includes any successor Person under the
Indenture) jointly and severally, unconditionally guarantees, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of August 12, 2005 (the
“Indenture”) among Cardtronics, Inc. (the “Company”), the Guarantors named therein and Wells Fargo
Bank, National Association, as trustee (the “Trustee”), (a) the due and punctual payment of the
principal of, premium and Additional Interest (as defined in the Indenture), if any, and interest
on the Notes (as defined in the Indenture), whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and premium, and, to the
extent permitted by law, interest and Additional Interest, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in accordance with the terms
of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration
or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Note Guarantee and the Indenture are expressly set forth in Article Twelve of the
Indenture and reference is hereby made to the Indenture for the precise terms of the Note
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action
as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose; provided, however, that
the Indebtedness evidenced by this Note Guarantee shall cease to be so subordinated and subject in
right of payment upon any defeasance of this Note in accordance with the provisions of the
Indenture. Capitalized terms used but not defined herein shall have the meanings ascribed to them
in the Indenture.




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IN WITNESS HEREOF, the Guarantors have caused this Notation of Guarantee to be executed by a duly
authorized officer.




	 	 	 	 	 	 	 
	 	 	CARDTRONICS GP, INC.	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CARDTRONICS LP, INC.	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CARDTRONICS, LP	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






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EXHIBIT E




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




          Supplemental Indenture (this “Supplemental Indenture”), dated as of                                         , among
                                         (the “Guaranteeing Subsidiary”), a subsidiary of Cardtronics, Inc., a Delaware
corporation (or its permitted successor) (the “Company”), and Wells Fargo Bank, National
Assocation, a nationally chartered banking association (or its permitted successor), as trustee
under the Indenture referred to below (the “Trustee”).




W I T N E S S E T H




          WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of August 12, 2005 providing for
the issuance of the Company’s 9 1/4% Senior Subordinated Notes due 2005 (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, subject to Article Twelve of the Indenture, unconditionally
guarantee the Notes on the terms and conditions set forth therein (the “Note 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 Company, the Guarantors, the
Guaranteeing Subsidiary and the Trustee agree as follows for the equal and ratable benefit of the
Holders of the Notes:




          1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.




          2. Agreement to Guarantee.




          (a) Subject to Article Twelve of the Indenture, the Guaranteeing Subsidiary, jointly and
severally with all other Guarantors, fully and unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:





     (i) the principal of, premium, if any, and accrued and unpaid interest and Additional
Interest, if any, on the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal of, premium,
if any, and interest and Additional Interest, if any, on the Notes, if lawful (subject in
all cases to any applicable grace period provided herein), and all other



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obligations of the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full, all in accordance with the terms hereof and thereof; and




     (ii) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will 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 immediately. The Guaranteeing
Subsidiary agrees that this is a guarantee of payment and not a guarantee of collection.



          (b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor.




          (c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes and the Indenture.




          (d) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company or the Guarantors, any amount paid by any of them to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.




          (e) The Guaranteeing Subsidiary 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.




          (f) The Guaranteeing Subsidiary 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 Six of the Indenture for the purposes of the Note
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 Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Note Guarantee.




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          (g) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Holders under the
Note Guarantee.




          (h) The Guaranteeing Subsidiary confirms, pursuant to Section 12.02 of the Indenture, that it
is the intention of such Guaranteeing Subsidiary that the Note Guarantee not constitute (i) 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 the Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to the
Note Guarantee. To effectuate the foregoing intention, the Guaranteeing Subsidiary and the Trustee
hereby irrevocably agree that the obligations of the Guaranteeing Subsidiary will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guaranteeing Subsidiary 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 Article Twelve of the
Indenture, result in the obligations of the Guaranteeing Subsidiary under the Note Guarantee not
constituting a fraudulent transfer or conveyance or such an unlawful shareholder distribution.




          3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note Guarantee
shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of the Note Guarantee.




          4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms. The Guaranteeing
Subsidiary may not sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into, any Person other than as set forth in Section 12.04 of the
Indenture.




          5. Release. The Guaranteeing Subsidiary’s Note Guarantee shall be released as set
forth in Section 12.05 of the Indenture.




          6. No Recourse Against Others. Pursuant to Section 14.07 of the Indenture, no
director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have
any liability for any obligations of the Guaranteeing Subsidiary under the Notes, the Indenture,
this Supplemental Indenture, the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. This waiver and release are part of the
consideration for the Note Guarantee.




          7. Subordination of Note Guarantee. Payments on the Note Guarantees are subordinated
to the extent and manner provided for in Article 13 of the Indenture, to the prior payment in full
in cash or Cash Equivalents of all Senior Debt of the Guarantors, including Senior Debt of the
Guarantors incurred after the date of the Indenture.




          8. NEW YORK LAW TO GOVERN. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.




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          9. 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.




          10. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.




          11. 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 and
the Company.




[SIGNATURE PAGE FOLLOWS]




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          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.




	 	 	 	 	 	 	 
	 	 	[NAME OF GUARANTEEING SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[•], a
[•] [corporation][limited liability	 	 
	 	 	company][partnership]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[•],	 	 
	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 







E-5