EX-4.1



 







Exhibit 4.1




EXECUTION COPY




iPAYMENT, INC.




93/4% SENIOR SUBORDINATED NOTES DUE 2014




 






Indenture




Dated as of May 10, 2006




 






Wells Fargo Bank, National Association




as 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)
	 	 	 	13.03
	(c)
	 	 	 	13.03
	313(a)
	 	 	 	7.06, 13.03
	(b)(1)
	 	 	 	N.A.
	(b)(2)
	 	 	 	7.06, 7.07
	(c)
	 	 	 	7.06, 13.02
	(d)
	 	 	 	7.06
	314(a)
	 	 	 	7.06, 13.05
	(b)
	 	 	 	N.A.
	(c)(1)
	 	 	 	N.A.
	(c)(2)
	 	 	 	N.A.
	(c)(3)
	 	 	 	N.A.
	(d)
	 	 	 	N.A.
	(e)
	 	 	 	13.05
	(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)
	 	 	 	N.A.
	(a)(2)
	 	 	 	N.A.
	(b)
	 	 	 	N.A.
	(c)
	 	 	 	13.13








 




			
	 	 	N.A. means not applicable.

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






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	317(a)(1)
	 	 	 	N.A.
	(a)(2)
	 	 	 	N.A.
	(b)
	 	 	 	N.A.
	318(a)
	 	 	 	N.A.
	(b)
	 	 	 	N.A.
	(c)
	 	 	 	13.01






 ii 




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	CROSS-REFERENCE TABLE	 	 	i	 
	ARTICLE ONE

	DEFINITIONS AND INCORPORATION

	BY REFERENCE

	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	31	 
	Section 1.03
	 	Incorporation by Reference to the Trust Indenture Act	 	 	32	 
	Section 1.04
	 	Rules of Construction	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE TWO

	THE NOTES

	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating	 	 	33	 
	Section 2.02
	 	Execution and Authentication	 	 	34	 
	Section 2.03
	 	Methods of Receiving Payments on the Notes	 	 	35	 
	Section 2.04
	 	Registrar and Paying Agent	 	 	35	 
	Section 2.05
	 	Paying Agent to Hold Money in Trust	 	 	35	 
	Section 2.06
	 	Holder Lists	 	 	36	 
	Section 2.07
	 	Transfer and Exchange	 	 	36	 
	Section 2.08
	 	Replacement Notes	 	 	49	 
	Section 2.09
	 	Outstanding Notes	 	 	49	 
	Section 2.10
	 	Treasury Notes	 	 	50	 
	Section 2.11
	 	Temporary Notes	 	 	50	 
	Section 2.12
	 	Cancellation	 	 	50	 
	Section 2.13
	 	Defaulted Interest	 	 	51	 
	Section 2.14
	 	CUSIP Numbers	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE THREE

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	51	 
	Section 3.02
	 	Selection of Notes to Be Redeemed	 	 	51	 
	Section 3.03
	 	Notice of Redemption	 	 	52	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	53	 
	Section 3.05
	 	Deposit of Redemption Price	 	 	53	 
	Section 3.06
	 	Notes Redeemed in Part	 	 	53	 
	Section 3.07
	 	Optional Redemption	 	 	53	 
	Section 3.08
	 	Mandatory Redemption	 	 	54	 






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	ARTICLE FOUR

	COVENANTS

	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	55	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	55	 
	Section 4.03
	 	Reports	 	 	55	 
	Section 4.04
	 	Compliance Certificate	 	 	56	 
	Section 4.05
	 	[Reserved]	 	 	57	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	57	 
	Section 4.07
	 	Liens	 	 	57	 
	Section 4.08
	 	Offer to Repurchase upon a Change of Control	 	 	57	 
	Section 4.09
	 	Offer to Repurchase upon an Asset Sale	 	 	61	 
	Section 4.10
	 	Restricted Payments	 	 	63	 
	Section 4.11
	 	Incurrence of Indebtedness	 	 	67	 
	Section 4.12
	 	Limitation on Senior Subordinated Debt	 	 	71	 
	Section 4.13
	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	 	 	71	 
	Section 4.14
	 	Transactions with Affiliates	 	 	73	 
	Section 4.15
	 	Designation of Restricted and Unrestricted Subsidiaries	 	 	75	 
	Section 4.16
	 	Business Activities	 	 	77	 
	Section 4.17
	 	Payments for Consent	 	 	77	 
	Section 4.18
	 	Guarantees	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE FIVE

	SUCCESSORS

	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger, Consolidation or Sale of Assets	 	 	78	 
	 
	 	 	 	 	 	 
	ARTICLE SIX

	DEFAULTS AND REMEDIES

	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	79	 
	Section 6.02
	 	Acceleration	 	 	81	 
	Section 6.03
	 	Other Remedies	 	 	81	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	81	 
	Section 6.05
	 	Control by Majority	 	 	82	 
	Section 6.06
	 	Limitation on Suits	 	 	82	 
	Section 6.07
	 	Rights of Holders of Notes to Receive Payment	 	 	83	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	83	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	83	 
	Section 6.10
	 	Priorities	 	 	84	 
	Section 6.11
	 	Undertaking for Costs	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE SEVEN

	TRUSTEE

	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	84	 
	Section 7.02
	 	Certain Rights of Trustee	 	 	85	 






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	Section 7.03
	 	Individual Rights of Trustee	 	 	86	 
	Section 7.04
	 	Trustee's Disclaimer	 	 	86	 
	Section 7.05
	 	Notice of Defaults	 	 	86	 
	Section 7.06
	 	Reports by Trustee to Holders of the Notes	 	 	87	 
	Section 7.07
	 	Compensation and Indemnity	 	 	87	 
	Section 7.08
	 	Replacement of Trustee	 	 	88	 
	Section 7.09
	 	Successor Trustee by Merger, Etc.	 	 	89	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	89	 
	Section 7.11
	 	Preferential Collection of Claims Against the Company	 	 	89	 
	 
	 	 	 	 	 	 
	ARTICLE EIGHT

	DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	89	 
	Section 8.02
	 	Legal Defeasance and Discharge	 	 	89	 
	Section 8.03
	 	Covenant Defeasance	 	 	90	 
	Section 8.04
	 	Conditions to Legal or Covenant Defeasance	 	 	91	 
	Section 8.05
	 	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous	 	 	 	 
	 
	 	Provisions	 	 	92	 
	Section 8.06
	 	Repayment to the Company	 	 	92	 
	Section 8.07
	 	Reinstatement	 	 	93	 
	 
	 	 	 	 	 	 
	ARTICLE NINE

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	93	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	94	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	96	 
	Section 9.04
	 	Revocation and Effect of Consents	 	 	96	 
	Section 9.05
	 	Notation on or Exchange of Notes	 	 	96	 
	Section 9.06
	 	Trustee to Sign Amendments, Etc.	 	 	97	 
	 
	 	 	 	 	 	 
	ARTICLE TEN

	SUBORDINATION

	 
	 	 	 	 	 	 
	Section 10.01
	 	Agreement to Subordinate	 	 	97	 
	Section 10.02
	 	Liquidation; Dissolution; Bankruptcy	 	 	97	 
	Section 10.03
	 	Default on Designated Senior Debt	 	 	97	 
	Section 10.04
	 	Acceleration of Securities	 	 	98	 
	Section 10.05
	 	When Distribution Must Be Paid Over	 	 	99	 
	Section 10.06
	 	Notice by the Company	 	 	99	 
	Section 10.07
	 	Subrogation	 	 	99	 
	Section 10.08
	 	Relative Rights	 	 	100	 
	Section 10.09
	 	Subordination May Not Be Impaired by the Company	 	 	100	 
	Section 10.10
	 	Distribution or Notice to Representative	 	 	100	 
	Section 10.11
	 	Rights of Trustee and Paying Agent	 	 	100	 
	Section 10.12
	 	Authorization to Effect Subordination	 	 	101	 






 iii 




 









 





	 	 	 	 	 	 	 
	ARTICLE ELEVEN

	NOTE GUARANTEES

	 
	 	 	 	 	 	 
	Section 11.01
	 	Guarantee	 	 	101	 
	Section 11.02
	 	Limitation on Guarantor Liability	 	 	102	 
	Section 11.03
	 	Execution and Delivery of Note Guarantee	 	 	102	 
	Section 11.04
	 	Releases	 	 	103	 
	Section 11.05
	 	Subordination of the Note Guarantees	 	 	103	 
	 
	 	 	 	 	 	 
	ARTICLE TWELVE

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 	 	 
	Section 12.01
	 	Satisfaction and Discharge	 	 	107	 
	Section 12.02
	 	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous	 	 	 	 
	 
	 	Provisions	 	 	108	 
	Section 12.03
	 	Repayment to the Company	 	 	109	 
	 
	 	 	 	 	 	 
	ARTICLE THIRTEEN

	MISCELLANEOUS

	 
	 	 	 	 	 	 
	Section 13.01
	 	Trust Indenture Act Controls	 	 	109	 
	Section 13.02
	 	Notices	 	 	109	 
	Section 13.03
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	111	 
	Section 13.04
	 	Certificate and Opinion as to Conditions Precedent	 	 	111	 
	Section 13.05
	 	Statements Required in Certificate or Opinion	 	 	111	 
	Section 13.06
	 	Rules by Trustee and Agents	 	 	112	 
	Section 13.07
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	112	 
	Section 13.08
	 	Governing Law	 	 	112	 
	Section 13.09
	 	Consent to Jurisdiction	 	 	112	 
	Section 13.10
	 	No Adverse Interpretation of Other Agreements	 	 	112	 
	Section 13.11
	 	Successors	 	 	112	 
	Section 13.12
	 	Severability	 	 	113	 
	Section 13.13
	 	Counterpart Originals	 	 	113	 
	Section 13.14
	 	Acts of Holders	 	 	113	 
	Section 13.15
	 	Benefit of Indenture	 	 	114	 
	Section 13.16
	 	Table of Contents, Headings, Etc.	 	 	114	 






 iv 




 









 





	 	 	 	 	 	 	 
	EXHIBITS
  
	 
	 	 	 	 	 	 
	Exhibit A
	 	FORM OF NOTE	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit B
	 	FORM OF CERTIFICATE OF TRANSFER	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit C
	 	FORM OF CERTIFICATE OF EXCHANGE	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit D
	 	FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY	 	 	 	 
	 
	 	SUBSEQUENT GUARANTORS	 	 	 	 






 v 




 









 





               INDENTURE dated as of May 10, 2006 among iPayment, Inc., a Delaware corporation (the
“Company”), the Guarantors (as defined below) and Wells Fargo Bank, National Association, as
trustee.



               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 93/4% Senior Subordinated Notes due 2014:



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 attached hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee that shall be issued in a denomination
equal to the outstanding principal amount at maturity of the Notes sold in reliance on Rule 144A.




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




          “Additional Notes” means an unlimited maximum aggregate principal amount of Notes (other than
(x) the Initial Notes, (y) any Exchange Notes and (z) any Note issued pursuant to Sections 2.07(a),
(c), (e) or (f), Section 2.08 or Section 2.11 hereof) issued under this Indenture in accordance
with Sections 2.02 and 4.11 hereof as part of the same Series as the Initial Notes.




          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of such Person
shall be deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” shall have correlative meanings.




          “Agent” means any Registrar, Paying Agent or co-registrar.




          “Applicable Premium” means, with respect to a Note at any date of redemption, the greater of
(x) 1.0% of the principal amount of such Note and (y) the excess of (i) the present value at such
date of redemption of (A) the redemption price of such Note at May 15, 2010 (such redemption price
being described in Section 3.07(d) hereof) plus (B) all remaining required interest payments due on
such Note through May 15, 2010 (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 (ii) the principal amount of such Note, as calculated by the Company




1









 




or
on behalf of the Company by such Person as the Company shall designate; provided that such
calculation shall not be a duty or obligation of the Trustee.




               “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:




	 	(a)	 	the sale, lease, conveyance or other disposition of any assets (other than as
provided in subclause (b) hereof); and

	 
	 	(b)	 	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 or sold to foreign nationals to the extent required by applicable law).





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





	 	(a)	 	any single transaction or series of related transactions that involves assets
or Equity Interests having a Fair Market Value of less than $1,000,000;

	 
	 	(b)	 	a transaction governed by the provisions of this Indenture pursuant to Section
4.08 or 5.01 hereof;

	 
	 	(c)	 	any sale, lease, conveyance, disposition or issuance to the Company or to
another Restricted Subsidiary;

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

	 
	 	(e)	 	the sale, conveyance or other disposition of Cash Equivalents;

	 
	 	(f)	 	any sale, conveyance or other disposition of accounts or notes receivable in
connection with the compromise, settlement or collection thereof in the ordinary course
of business or in bankruptcy or similar proceedings;

	 
	 	(g)	 	a Restricted Payment that is permitted pursuant to Section 4.10 hereof, any
Permitted Investment and any Permitted Payment;

	 
	 	(h)	 	any sale, conveyance or other disposition of any property, equipment or other
assets that is surplus, damaged, worn out or obsolete;

	 
	 	(i)	 	the creation of a Lien not prohibited by this Indenture;

	 
	 	(j)	 	the sale or discount (with or without recourse, and on customary or
commercially reasonable terms) of accounts receivable arising in the ordinary course of
business; and






2









 






	 	(k)	 	any sale, conveyance or other disposition arising from foreclosure,
condemnation or similar action with respect to any property or other assets, or the
exercise of termination rights under any lease, license, concession or other agreement
in the ordinary course of business.






               “Assumed Tax Rate” means, for or in respect of any Tax Period and any item of income, the
greater of (x) the maximum combined United States Federal, New York State and New York City tax
rate applicable during such Tax Period to such item of income if included in income by an
individual resident of New York City, and (y) the maximum combined United States Federal, New York
State and New York City tax rate applicable during such Tax Period to such item of income if
included as New York source income by a corporation doing business in New York City. In computing
the Assumed Tax Rate, effect shall be given to the deductibility for Federal income tax purposes of
state and local income taxes.



               “Bankruptcy Law” means Title 11, U.S. 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. The terms “Beneficially Owns” and “Beneficially Owned” shall have a
corresponding meaning.



               “Board of Directors” means:




	 	(a)	 	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;

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

	 
	 	(c)	 	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:




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





3









 






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

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

	 
	 	(d)	 	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:




	 	(a)	 	cash;

	 
	 	(b)	 	obligations issued or fully guaranteed or insured by the United States
government 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 five years from the
date of acquisition;

	 
	 	(c)	 	certificates of deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case, with (i) any lender under
the Credit Agreement, (ii) any domestic commercial bank having capital and surplus in
excess of $500,000,000 or (iii) any bank with a commercial paper 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 Ratings Services;

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

	 
	 	(e)	 	commercial paper having a rating of P-1 or better from Moody’s or A-1 or better
from Standard & Poor’s Ratings Services and in each case maturing within nine months
after the date of acquisition;

	 
	 	(f)	 	securities issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing authority
thereof, rated at least “A” by Moody’s or Standard & Poor’s Ratings Services and having
maturities of not more than five years from the date of acquisition;

	 
	 	(g)	 	investments in funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (a) through (f) of this definition;

	 
	 	(h)	 	investments in money market funds subject to the risk limiting conditions of
Rule 2a-7 (or any successor rule) of the Commission under the Investment Company Act of
1940, as amended; and





4









 






	 	(i)	 	investments similar to any of the foregoing, and of comparable credit quality
and tenor, denominated in foreign currencies, as reasonably required in connection with
any business conducted by a Foreign Subsidiary in the jurisdiction where such foreign
currency is legal tender, and approved by the Board of Directors.






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




	 	(a)	 	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 (other than the Permitted Holders) and
any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than
the Permitted Holders or a Parent, becomes the Beneficial Owner of (i) 35% or more of
the voting power of the Voting Stock of such transferee Person and (ii) more of the
voting power of the Voting Stock of such transferee Person than the voting power of the
Voting Stock of such transferee Person Beneficially Owned, directly or indirectly, by
the Permitted Holders; provided that, (x) so long as such transferee Person is a Wholly
Owned Subsidiary of any Parent, no such “person” (as so defined) shall be deemed to
become a Beneficial Owner of 35% or more of the voting power of the Voting Stock of
such transferee Person unless such “person” shall be or become a Beneficial Owner of
35% or more of the voting power of the Voting Stock of such Parent (and more of the
voting power of the Voting Stock of such Parent than the voting power of such Voting
Stock Beneficially Owned, directly or indirectly, by the Permitted Holders) and (y) any
Voting Stock of which any Permitted Holder is the Beneficial Owner shall not be
included in any Voting Stock of which such “person” (as so defined) is the Beneficial
Owner, unless such “person” is not an Affiliate of any Permitted Holder and has the
sole voting power with respect to that Voting Stock;

	 
	 	(b)	 	any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more of the Permitted Holders or a Parent, becomes
the Beneficial Owner, directly or indirectly, of (i) 35% or more of the voting power of
the Voting Stock of the Company and (ii) more of the voting power of the Voting Stock
of the Company than the voting power of the Voting Stock of the Company Beneficially
Owned, directly or indirectly, by the Permitted Holders; provided that, (x) so long as
the Company is a Wholly Owned Subsidiary of any Parent, no such “person” or “group” (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act) shall be deemed to
become a Beneficial Owner of 35% or more of the voting power of the Voting Stock of the
Company unless such “person” or “group” shall be or become a Beneficial Owner of 35% or
more of the voting power of the Voting Stock of such Parent (and more of the voting
power of the Voting Stock of such Parent than the voting power of such Voting Stock
Beneficially Owned, directly or indirectly, by the Permitted
Holders) and (y) any Voting Stock of which any Permitted Holder is the Beneficial
Owner shall not be included in any Voting Stock of which such “person” (as so
defined) is the Beneficial Owner, unless such “person” is not an 





5









 






	 	 	 	Affiliate of any
Permitted Holder and has the sole voting power with respect to that Voting Stock;







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

	 
	 	(d)	 	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 immediately after giving effect to such
transaction, no “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), other than the Permitted Holders or a Parent, becomes, directly
or indirectly, the Beneficial Owner of (i) 35% or more of the voting power of the
Voting Stock of the surviving Person and (ii) more of the voting power of the Voting
Stock of such surviving Person than the voting power of the Voting Stock of such
surviving Person Beneficially Owned, directly or indirectly, by the Permitted Holders;
provided that, (x) so long as such surviving Person is a Wholly Owned Subsidiary of any
Parent, no such “person” or “group” (as so defined) shall be deemed to become a
Beneficial Owner of 35% or more of the voting power of the Voting Stock of such
surviving Person unless such “person” or “group” shall be or become a Beneficial Owner
of 35% or more of the voting power of the Voting Stock of such Parent (and more of the
voting power of the Voting Stock of such Parent than the voting power of such Voting
Stock Beneficially Owned, directly or indirectly, by the Permitted Holders) and (y) any
Voting Stock of which any Permitted Holder is the Beneficial Owner shall not be
included in any Voting Stock of which such “person” (as so defined) is the Beneficial
Owner, unless such “person” is not an Affiliate of any Permitted Holder and has the
sole voting power with respect to that Voting Stock.






               The transactions contemplated by the Merger Agreement shall not constitute or give rise to a
Change of Control.



               “Clearstream” means Clearstream Banking, a société anonyme organized under the laws of
Luxembourg.



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




	 	(a)	 	provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, including such taxes paid by such Person and
its Restricted Subsidiaries with respect to minority interest income or expense for
such period, to the extent that such provision for taxes was deducted in computing such
Consolidated Net Income; plus





6









 












	 	(b)	 	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

	 
	 	(c)	 	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 non-cash expenses were deducted in computing such Consolidated Net Income; plus

	 
	 	(d)	 	the amount of any extraordinary, unusual or non-recurring losses, charges or
expenses of such Person and its Restricted Subsidiaries to the extent that any such
losses, charges or expenses were deducted in computing such Consolidated Net Income;
plus

	 
	 	(e)	 	for any quarter in the year ended December 31, 2005, all adjustments to
“EBITDA” used in connection with the calculation of pro forma “Adjusted EBITDA” for the
year ended December 31, 2005 (as set forth in the Offering Memorandum dated May 3, 2006
with respect to the Notes under Note (5) to the section thereof entitled
“Summary—Summary Historical Consolidated Financial and Unaudited Pro Forma Financial
Data”) to the extent such adjustments were used in computing such Consolidated Net
Income in such period and continue to be applicable; plus

	 
	 	(f)	 	the minority interest expense consisting of subsidiary income attributable to
minority equity interests of third parties in any non-Wholly Owned Restricted
Subsidiary to the extent such expense was deducted in computing Consolidated Net
Income; minus

	 
	 	(g)	 	(i) non-cash items (other than the accrual of revenue), and extraordinary,
unusual or non-recurring gains and (ii) the minority interest income consisting of
subsidiary losses attributable to the minority equity interests of third parties in any
non-Wholly Owned Restricted Subsidiary, in each case to the extent increasing such
Consolidated Net Income for such period;






               in each case, on a consolidated basis and determined (in each case to the extent applicable)
in accordance with GAAP.



               For purposes of this definition of “Consolidated Cash Flow,” if such Person is a Flow-Through
Entity, any Permitted Tax Distributions made or which may be made by such Person shall be included
as though such amounts had been paid as income taxes directly by such Person for such period and to
the extent that such amounts were deducted in computing the Consolidated Net Income of such Person.




7










 







               Notwithstanding the preceding, the provision for taxes based on the income or profits of, the
depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the
Company that is not a Guarantor 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, distributed, loaned or advanced 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 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, to the extent otherwise included:




	 	(a)	 	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 shall be included (i) solely
for the purpose of determining the amount available for Restricted Payments under
Section 4.10(a)(C) hereof only to the extent of the amount of dividends or
distributions paid to the specified Person or a Restricted Subsidiary thereof and (ii)
solely for the purpose of determining Consolidated Cash Flow only to the extent of the
amount of dividends or distributions paid in cash (or converted to cash) to the
specified Person or a Restricted Subsidiary thereof;

	 
	 	(b)	 	the Net Income of any Restricted Subsidiary shall be excluded to the extent
that the declaration and payment of dividends and similar distributions, and the making
of loans and advances, 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 equityholders;

	 
	 	(c)	 	the Net Income of any Person acquired (in a pooling of interests or similar
transactions) during the specified period for any period prior to the date of such
acquisition shall be excluded;

	 
	 	(d)	 	the cumulative effect of a change in accounting principles shall be excluded;

	 
	 	(e)	 	any non-cash compensation expense recorded from grants of restricted stock,
stock options or other rights to officers, directors and employees of such Person or
any of its Restricted Subsidiaries shall be excluded;

	 
	 	(f)	 	any unrealized gains or losses in respect of currency Hedging Obligations shall
be excluded;





8









 






	 	(g)	 	any unrealized foreign currency transaction gains or losses in respect of
Indebtedness of any Person denominated in a currency other than the functional currency
of such Person shall excluded;

	 
	 	(h)	 	any unrealized foreign currency translation or transaction gains or losses in
respect of Indebtedness or other obligations owing between or among any of the Company
and its Restricted Subsidiaries shall be excluded; and

	 
	 	(i)	 	any non-cash charge, expense or other impact attributable to application of the
purchase method of accounting (including the total amount of depreciation and
amortization, cost of sales or other non-cash expense resulting from the write-up of
assets to the extent resulting from such purchase accounting adjustments) shall be
excluded.






               For purposes of determining the amount
available for Restricted Payments under Section
4.10(a)(C) hereof, Consolidated Net Income may (at the Company’s option) be reduced as contemplated
by Section 4.10(a)(C)(3) hereof.



              
 “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who:




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

	 
	 	(b)	 	was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors or one or more Permitted Holders who
were members of such Board of Directors at the time of such nomination or election.






               “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.



               “Credit Agreement” means that certain Credit Agreement, dated as of the Issue Date, by and
among the Company, Holdings, the guarantor parties thereto, Bank of America, N.A., as
Administrative Agent and the other lenders named therein, 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 or refinanced, in whole or in part,
from time to time, regardless of whether such amendment, restatement, modification, renewal,
refunding, replacement or refinancing is with the original banks, lenders or institutions or other
banks, lenders or institutions or otherwise and whether provided under the original Credit
Agreement or one or more other credit agreements, financing agreements or other Credit Facilities
or otherwise. Without limiting the generality of the foregoing, the term “Credit Agreement” shall
include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries as additional borrowers or guarantors thereunder,
(iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and conditions thereof.



9









 





               “Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or other financing arrangements, in each case with
one or more banks or other lenders or institutions, providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to any of such banks,
lenders or institutions to special purpose entities formed to borrow from any of such banks,
lenders or institutions against such receivables), letters of credit, bankers’ acceptances or other
Indebtedness, (including, without limitation, Indebtedness under any indenture or similar financing
agreement and any bonds or notes issued thereunder), in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced, in whole or in part, from time to time, regardless of
whether such amendment, restatement, modification, renewal, refunding, replacement or refinancing
is with the original banks, lenders or institutions or other banks, lenders or institutions or
otherwise and whether provided under the original credit agreement governing any such debt facility
or one or more other credit agreements, indentures, financing agreements or other Credit Facilities
or otherwise. Without limiting the generality of the foregoing, the term “Credit Facility” shall
include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries as additional borrowers or guarantors thereunder,
(iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and conditions thereof.



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



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



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



               “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.04 hereof as the Depositary with respect to the Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.



               “Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration
received by the Company or a Restricted Subsidiary of the Company in connection with an Asset Sale
that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate,
setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale, redemption or payment of, on or with respect to, such Designated
Non-cash Consideration.



               “Designated Senior Debt” means:




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





10









 






	 	(b)	 	any other Senior Debt the amount of which is $25,000,000 or more and that has
been designated by the Company as “Designated Senior Debt.”






               “Disinterested Directors” means, with respect to any Affiliate Transaction, each member of the
Board of Directors of the Company who is not an employee of the Company or its Affiliates and has
no direct or indirect material financial interest in or with respect to such Affiliate Transaction
other than as a result of an Equity Interest in the Company or any Parent.



               “Disqualified Stock” means any Capital Stock (other than Management 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 91 days after
the date on which the Notes mature. Notwithstanding the preceding or following sentence, any
Capital Stock, options, warrants or rights that would constitute Disqualified Stock solely because
the holders thereof have the right to require the Company to repurchase such Capital Stock,
options, warrants or rights upon the occurrence of a change of control or an asset sale (as either
such phrase is defined thereunder) shall not constitute Disqualified Stock if the terms of such
Capital Stock, options, warrants or rights provide that the Company may not repurchase or redeem
any such Capital Stock, options, warrants or rights pursuant to such provisions unless such
repurchase or redemption complies with Section 4.10 hereof. The term “Disqualified Stock” shall
also include any options, warrants or other rights to acquire Capital Stock (other than in respect
of Management Stock) 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 91 days after the date
on which the Notes mature.



               “Domestic Subsidiary” means any Restricted Subsidiary of the Company other than a Foreign
Subsidiary.



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



               “Equity Offering” means a sale of Capital Stock (x) that is a sale 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) or (y) that is a sale of Capital Stock of a Parent the proceeds of which in an amount
equal to or exceeding the Redemption Amount are contributed to the equity capital of the Company or
any of its Restricted Subsidiaries.



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



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



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



11









 





               “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 (i) 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 (x) the Notes and (y) any borrowings made under the Credit Agreement on the
Issue Date, until such amounts are repaid, and (ii) Indebtedness arising from agreements existing
on the Issue Date providing for earn outs or similar obligations Incurred in connection with the
acquisition of a business, assets, Merchant Portfolio or a Restricted Subsidiary.



               “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 Company and, if the Fair Market Value
exceeds $3,000,000, by the Board of Directors of the Company, whose determination, unless otherwise
specified below, shall be conclusive if evidenced by a Board Resolution attached to an Officers’
Certificate delivered to the Trustee. Notwithstanding the foregoing, with respect to the
determinations made under Sections 4.10(a)(C)(2) and (3) hereof and the first sentence of Section
4.10(c) hereof, the Board of Directors’ determination of Fair Market Value shall 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 $10,000,000.



               “Financing Disposition” means any sale, transfer, conveyance or other disposition of property
or assets by the Company or any Subsidiary thereof to any Receivables Entity, or by any Receivables
Subsidiary, in each case in connection with the Incurrence by a Receivables Entity of Indebtedness,
or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in
respect of such property or assets.



               “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, redeems, defeases, discharges or otherwise acquires or
retires any Indebtedness or issues, repurchases, redeems or otherwise acquires or retires 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 occurs for which the calculation of
the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such Incurrence, repayment, repurchase,
redemption, defeasance, discharge or other acquisition or retirement of Indebtedness, or such
issuance, repurchase, redemption or other acquisition or retirement 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:



12









 






	 	(a)	 	acquisitions and dispositions of Merchant Portfolios, business entities or
property and assets constituting a division, operating unit of a business 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 shall 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 shall be calculated on a pro forma basis in accordance with Regulation
S-X under the Securities Act, but without giving effect to clause (c) of the proviso
set forth in the definition of Consolidated Net Income; and

	 
	 	(b)	 	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 shall be computed as if the rate in effect on 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.






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




	 	(a)	 	the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and 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, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations, and net of interest income, whether received or
accrued, of such Person and its Restricted Subsidiaries for such period; plus

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

	 
	 	(c)	 	any interest expense on Indebtedness of another Person (other than such Person
or one of its Restricted Subsidiaries) 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

	 
	 	(d)	 	all dividends, whether paid or accrued and whether or not in cash, on any
series of Disqualified Stock of such Person or Disqualified Stock or Preferred Stock of
any of its Restricted Subsidiaries, other than (x) dividends on Equity Interests
payable solely in Equity Interests (other than Disqualified Stock) of the Company or to
the Company or a Restricted Subsidiary of the Company and (y) Permitted Tax





13









 






	 	 	 	Distributions, and unless (a) such Person is a Flow-Through Entity or (b) such
dividends are paid or accrued on Preferred Stock of any Restricted Subsidiary that
is a joint venture or similar entity and not a Wholly Owned Restricted Subsidiary
owned by the minority investor in such Restricted Subsidiary, times a fraction, the
numerator of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person, expressed as a
decimal,






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



               “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is (x) not formed
under the laws of the United States of America or any state thereof or the District of Columbia, or
(y) a Subsidiary of any Foreign Subsidiary or (z) a Foreign Subsidiary Holding Company.



               “Foreign Subsidiary Holding Company” means any Restricted Subsidiary that has no material
assets other than securities of one or more Foreign Subsidiaries and other assets relating to the
ownership interest in any such securities.



               “GAAP” means generally accepted accounting principles in the United States, including those
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 (for
purposes of the definitions of the terms “Consolidated Cash Flow,” “Consolidated Net Income,”
“Fixed Charges,” “Fixed Charge Coverage Ratio,” “Net Income,” and “Total Assets,” all defined terms
in this Indenture to the extent used in or relating to any of the foregoing definitions, and all
ratios and computations based on any of the foregoing definitions) and as in effect from time to
time (for all other purposes of this Indenture).



               “Global Note Legend” means the legend set forth in Section 2.07(g)(ii) hereof, which is
required to be placed on all Global Notes issued under this Indenture.



               “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with Section 2.01, 2.07(b)(iv), 2.07(d)(ii) or 2.07(f) hereof.



               “Government Securities” means securities that are direct obligations of the United States of
America for the 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



14









 







reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another
Person.



               “Guarantor” means any Subsidiary of the Company that enters into a Note Guarantee in
accordance with the provisions of this Indenture and its successors and assigns until released from
its obligations under its Note Guarantee and this Indenture in accordance with the terms of this
Indenture.



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




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

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

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






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



               “Holdings” means iPayment Holdings, Inc., a Delaware corporation, and any successor in
interest thereto.



               “Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, enter into
any Guarantee of, 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” shall have meanings correlative to the foregoing); provided that (x)
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 (y) neither the accrual of interest nor the accretion of
original issue discount nor the payment of interest in the form of additional Indebtedness with
substantially 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 shall
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 any of its
Restricted Subsidiaries as accrued or paid.



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




	 	(a)	 	in respect of borrowed money;

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





15









 






	 	(c)	 	in respect of banker’s acceptances;

	 
	 	(d)	 	in respect of Capital Lease Obligations;

	 
	 	(e)	 	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;

	 
	 	(f)	 	representing Hedging Obligations;

	 
	 	(g)	 	representing Disqualified Stock valued at its involuntary maximum fixed
repurchase price excluding accrued dividends; or

	 
	 	(h)	 	in the case of a Subsidiary of such Person, representing Preferred Stock valued
at its involuntary maximum fixed repurchase price excluding accrued dividends;





if and to the extent any of the preceding items (other than letters of credit, Hedging Obligations,
Disqualified Stock and Preferred Stock) would appear as a liability on the balance sheet of the
specified Person prepared in accordance with GAAP. 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
shall be the lesser of (A) the Fair Market Value of such asset at such date of determination and
(B) the amount of such Indebtedness, and (y) to the extent not otherwise included, the Guarantee by
the specified Person of any Indebtedness of any other Person, to the extent so guaranteed by the
specified Person. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified
Stock or Preferred Stock which does not have a fixed repurchase price shall 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 shall be
required to be determined pursuant to this Indenture, and, if such price is based upon or measured
by the fair market value of such Capital Stock, such fair market value shall be as determined in
good faith by the Board of Directors of the Company or the issuer of such Capital Stock.




               The amount of any Indebtedness outstanding as of any date (except as expressly provided above
and in the definition of Capital Lease Obligation) shall be:




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

	 
	 	(b)	 	the principal amount (or, in the case of letters of credit, the face amount)
thereof, in the case of any other Indebtedness; and

	 
	 	(c)	 	in the case of Hedging Obligations, the termination value of the agreement or
arrangement giving rise to such Hedging Obligation that would be payable at the time of
determination.






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



16









 





               “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 that Guarantee the
Indebtedness under the Credit Agreement on the Issue Date.



               “Initial Notes” means (i) the first $205,000,000 aggregate principal amount of Notes issued
under this Indenture on the date hereof and (ii) any Exchange Notes.



               “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 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 by such Person
in other Persons on a balance sheet of such Person 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 such that, after
giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Company, 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 shall 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.



               The amount of any Investment at any time of determination shall be the original cost of such
Investment, reduced (at the Company’s option) by the amount of any dividend, distribution, interest
payment, return of capital, repayment or other amount or value received in respect of or upon the
disposition of such Investment, which amount, in the case of any non-cash dividend, distribution,
interest payment, return of capital or repayment received in respect of such Investment, shall be
equal to the Fair Market Value of such dividend, distribution, interest payment, return of capital
or repayment; provided, that to the extent that the amount of the Restricted Payments outstanding
at any time is so reduced by any portion of such amount or value that would otherwise be included
in the calculation of Net Income, such portion of such amount or value shall not be so included for
purposes of calculating the amount of Restricted Payments that may be made pursuant to Section
4.10(a)(C) hereof.



               “Issue Date” means the date of original issuance of the Initial 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 or required by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of



17









 







payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on such payment for the intervening period.



               “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.



               “Management Investors” means the officers, directors, employees and other members of the
management of any Parent, the Company, or any of their respective Subsidiaries, or any sales
agents, sales representatives or independent sales groups providing marketing and related services
to any Parent, the Company or any of their respective Subsidiaries, or family members or relatives
thereof, or trusts, partnerships or limited liability companies for the benefit of any of the
foregoing, or any of their heirs, executors, successors and legal representatives, who at any date
beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Company
or any Parent; provided, however, that for the purposes of the definition of Permitted Holders,
Management Investors shall not include sales agents, sales representatives or independent sales
groups that are not officers, directors, employees and other members of the management of any
Parent, the Company, or any of their respective Subsidiaries, or family members or relatives
thereof, or trusts, partnerships or limited liability companies for the benefit of any of the
foregoing, or any of their heirs, executors, successors and legal representatives.



               “Management Stock” means Capital Stock of the Company or any Parent (or any options, warrants
or other rights in respect thereof) held by any of the Management Investors.



               “Merchant Portfolio” means a portfolio of merchant contracts.



               “Merger Agreement” means the Agreement and Plan of Merger, dated as of December 27, 2005,
among Holdings, iPayment Merger Co., Inc. and the Company.



               “Moody’s” means Moody’s Investors Service, Inc. and any successor thereof.



               “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and after any reduction in respect of dividends paid on
Preferred Stock of any such Person that is a Restricted Subsidiary or on Disqualified Stock of any
such Person that is the Company or a Restricted Subsidiary (in each case to the extent such
dividends constitute Fixed Charges and were paid pursuant to Section 4.10(b)(viii) hereof,
excluding, however:




	 	(a)	 	any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (i) any sale of assets outside the ordinary course
of business of such Person; or (ii) 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





18









 






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






               In this definition of “Net Income,” if such Person is a Flow-Through Entity, any Permitted Tax
Distributions made or which may be made by such Person shall be included as though such amounts had
been paid as income taxes directly by such Person for such period



               “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 (a) the 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, (b) 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 (and, if the Company is a Flow-Through Entity,
Permitted Tax Distributions made or that may be made with respect to income or gain arising as a
result of such Asset Sale), (c) amounts required to be applied to the payment of Indebtedness or
other liabilities secured by a Lien on the asset or assets that were the subject of such Asset Sale
or required to be paid as a result of such Asset Sale, (d) any reserve for adjustment in respect of
the sale price of such asset or assets established in accordance with GAAP, (e) 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
Asset Sale or 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 (f) 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 (i) excess amounts set aside for payment of taxes pursuant to
clause (b) above remaining after such taxes have been paid in full or the statute of limitations
therefor has expired and (ii) amounts initially held in reserve pursuant to clause (f) no longer so
held, shall, in the case of each of subclause (i) and (ii), at that time become Net Proceeds.



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



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



               “Notes” means the 93/4% Senior Subordinated Notes due 2014 of the Company issued under this
Indenture. The Initial Notes and the Additional Notes, if any, shall be treated as a single class
for all purposes under this Indenture and all references to the Notes shall include the Initial
Notes and any Additional Notes.



19









 





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



               “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, any Assistant 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 that meets the requirements of this 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 this
Indenture.



               “Parent” means any Person of which the Company at any time is or becomes a Subsidiary on or
after the Issue Date.



               “Parent Expenses” means, without duplication, (a) costs (including all professional fees and
expenses) incurred by any Parent in connection with its reporting obligations under, or in
connection and in compliance with, applicable laws, applicable rules or regulations of any
governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other
agreement or instrument relating to Indebtedness of the Company or any Restricted Subsidiary,
including any reports filed with respect to the Securities Act, the Exchange Act or the respective
rules and regulations promulgated thereunder, (b) indemnification obligations of any Parent owing
to directors, officers, employees or other Persons under its charter or by-laws or pursuant to
written agreements with any such Person, or obligations in respect of director and officer
insurance (including premiums therefor), (c) fees and expenses payable by any Parent in connection
with the transactions contemplated by the Merger Agreement, (d) other operational expenses of any
Parent incurred in the ordinary course of business in an amount not to exceed $1,000,000 in any
fiscal year, (e) expenses incurred by any Parent in connection with any offering of Capital Stock
or Indebtedness (x) where the net proceeds of such offering are intended to be received by,
contributed or loaned to the Company or a Restricted Subsidiary, or (y) in a prorated amount of
such expenses in proportion to the amount of such net proceeds intended to be so received,
contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so
long as any Parent shall cause the amount of such expenses to be repaid to the Company or the
relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed and (f)
Related Taxes.



               “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 by the Company
and its Restricted Subsidiaries on the Issue Date and other businesses reasonably related or
ancillary thereto.



20









 





               “Permitted Holder” means any of (i) Gregory S. Daily, Carl A. Grimstad and their Affiliates
and Related Parties, (ii) other Management Investors and any of their Affiliates (but only with
respect to their Beneficial Ownership of up to 10% in the aggregate of the voting power of the
Voting Stock of the Company or any Parent, as the case may be), and (iii) any Person acting in the
capacity of an underwriter in connection with a public or private offering of Capital Stock of any
Parent or the Company. In addition, any “person” (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) whose status as a Beneficial Owner constitutes or results in a Change of
Control in respect of which a Change of Control Offer is made in accordance with the requirements
of this Indenture, together with its Affiliates, shall thereafter constitute Permitted Holders.



               “Permitted Investments” means:




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

	 
	 	(b)	 	any Investment in Cash Equivalents;

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







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

	 
	 	(ii)	 	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;







	 	(d)	 	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 Section 4.09 hereof or
from a sale, conveyance or other disposition of property or assets that does not
constitute an Asset Sale;

	 
	 	(e)	 	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;

	 
	 	(f)	 	stock, obligations or securities received in settlement of debts or claims, or
upon foreclosure, perfection or enforcement of any Lien, or in satisfaction of
judgments or in connection with bankruptcy or insolvency of other Persons;

	 
	 	(g)	 	loans, advances or other extensions of credit (including Guarantees) to or in
respect of sales agents, sales representatives, independent sales groups, customers or
suppliers in the ordinary course of business receivables created or acquired or pledges
or deposits made in the ordinary course of business; and endorsements for collection or
deposit arising in the ordinary course of business;





21









 






	 	(h)	 	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;

	 
	 	(i)	 	loans or advances to equityholders of any Person acquired by the Company or any
of its Subsidiaries to fund taxes and expenses payable by such equityholders in
connection with such acquisition not to exceed $5,000,000 in the aggregate outstanding
at any one time;

	 
	 	(j)	 	loans or advances to officers and employees not to exceed $5,000,000 in the
aggregate outstanding at any one time;

	 
	 	(k)	 	Investments existing, or made pursuant to legally binding commitments existing,
on the Issue Date;

	 
	 	(l)	 	loans or advances to any current or former employee, officer, or director of
the Company or any of its Restricted Subsidiaries or any other Management Investor in
connection with such Person’s purchase of Equity Interest of the Company or any Parent
in an aggregate amount at any time outstanding not to exceed the amount of Permitted
Payments permitted pursuant to Section 4.10(b)(vii) hereof;

	 
	 	(m)	 	(i) Investments in any Receivables Subsidiary, or in connection with a
Financing Disposition by or to any Receivables Entity, including Investments of funds
held in accounts permitted or required by the arrangements governing such Financing
Disposition or any related Indebtedness, or (ii) any promissory note issued by the
Company or any Parent, provided that, if such Parent receives cash from the relevant
Receivables Entity in exchange for such note, an equal cash amount is contributed by
any Parent to the Company; and

	 
	 	(n)	 	other Investments, together with all other Investments made pursuant to this
clause (n) since the Issue Date and all Designated Non-cash Consideration received
pursuant to Section 4.09(a)(ii)(C) hereof and that is at that time outstanding, not to
exceed the greater of (x) $25,000,000 and (y) 8% of Total Assets.






               If any Investment pursuant to clause (n) above is made in any Person that is not a Restricted
Subsidiary and such Person thereafter becomes a Restricted Subsidiary, such Investment (at the
Company’s option) shall thereafter be deemed to have been made pursuant to clause (a) or (c) above
and not clause (n) above for so long as such Person is a Restricted Subsidiary of the Company.



               “Permitted Junior Securities” means:




	 	(a)	 	Equity Interests in the Company or any business entity that succeeds to the
rights and obligations of the Company as provided for by a plan of reorganization with
respect to the Company; and





22









 






	 	(b)	 	debt securities of the Company or any Guarantor or any business entity that
succeeds to the rights and obligations of the Company or such Guarantor as 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
this Indenture.






               “Permitted Liens” means:




	 	(a)	 	Liens on the assets of the Company and any Restricted Subsidiary of the Company
securing Senior Debt;

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

	 
	 	(c)	 	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 not created in connection with, or in 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 (plus
improvements, accessions, proceeds or dividends or distributions in respect thereof);

	 
	 	(d)	 	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 not created in
connection with, or in contemplation of, such acquisition and do not extend to any
property other than the property so acquired by the Company or the Restricted
Subsidiary (plus improvements, accessions, proceeds or dividends or distributions in
respect thereof);

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

	 
	 	(f)	 	Liens existing on, or provided for under written arrangements existing on, the
Issue Date;

	 
	 	(g)	 	Liens securing Permitted Refinancing Indebtedness; provided that such Liens do
not extend to any property or assets other than the property or assets (plus
improvements, accessions, proceeds or dividends or distributions in respect thereof)
that secure (or under such written arrangements with respect to the Indebtedness being
refinanced could secure) the Indebtedness being refinanced;

	 
	 	(h)	 	Liens on property or assets used to defease or to satisfy and discharge
Indebtedness; provided that such defeasance or satisfaction and discharge is not
prohibited by this Indenture;

	 
	 	(i)	 	Liens securing Indebtedness or other obligations of any Receivables Entity; and

	 
	 	(j)	 	Liens securing obligations that do not exceed $5,000,000 at any one time
outstanding.





23









 











               “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 (any of the foregoing, “refinance”) other Indebtedness
of the Company or any of its Restricted Subsidiaries; provided that:




	 	(a)	 	the amount of such Permitted Refinancing Indebtedness does not exceed the
amount of 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 (in each case as determined by the Company in
good faith));

	 
	 	(b)	 	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is pari passu with or expressly 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, 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;

	 
	 	(c)	 	if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is expressly 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 or the Note Guarantees, as applicable, 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;

	 
	 	(d)	 	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

	 
	 	(e)	 	such Permitted Refinancing Indebtedness is Incurred by either (i) a Restricted
Subsidiary that is a Guarantor, or that is an obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, or that could have
Incurred such Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded in compliance with Section 4.11 hereof or (ii) the Company.






               “Permitted Tax Distributions” means, for or in respect of any fiscal year or other tax period
(each a “Tax Period”) of the Company, an amount equal to the product of (x) the Taxable Income for
such Tax Period multiplied by (y) the Assumed Tax Rate with respect to each amount included
therein. Permitted Tax Distributions shall be calculated and made in advance of the dates on which
estimated tax payments relating to the pertinent Tax Period are



24









 




due, and shall be made without regard to the actual tax status of any direct or indirect
holders of Equity Interests in the Company




               “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.



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



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



               “Receivable” means a right to receive payment arising from a sale or lease of goods or
services by a Person pursuant to an arrangement with another Person pursuant to which such other
Person is obligated to pay for goods or services under terms that permit the purchase of such goods
and services on credit, as determined in accordance with GAAP.



               “Receivables Entity” means (x) any Receivables Subsidiary or (y) any other Person that is
engaged in the business of acquiring, selling, collecting, financing or refinancing Receivables,
accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to
time), other accounts and/or other receivables, and/or related assets.



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



               “Receivables Financing” means any financing of Receivables of the Company or any Restricted
Subsidiary that have been transferred to a Receivables Entity in a Financing Disposition.



               “Receivables Subsidiary” means a Subsidiary of the Company that (a) is engaged solely in the
business of acquiring, selling, collecting, financing or refinancing Receivables, accounts (as
defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time) and
other accounts and receivables (including any thereof constituting or evidenced by chattel paper,
instruments or general intangibles), all proceeds thereof and all rights (contractual and other),
collateral and other assets relating thereto, and any business or activities incidental or related
to such business, and (b) is designated as a Receivables Subsidiary by the Board of Directors of
the Company and no portion of the Indebtedness or any other obligation (contingent or otherwise) of
which (x) is at any time guaranteed by the Company or any of its Restricted Subsidiaries (other
than any Receivables Subsidiary), excluding guarantees of obligations (other than any guarantee of
Indebtedness) pursuant to representations, warranties, covenants and indemnities which are
customary in an accounts



25









 







receivable securitization transaction (as determined in good faith by the Company), (y) is at
any time recourse to or obligates the Company or any of its Restricted Subsidiaries (other than any
Receivables Subsidiary) in any way, other than pursuant to representations, warranties, covenants
and indemnities which are customary in an accounts receivable securitization transaction (as
determined in good faith by the Company), or (z) subjects any asset of the Company or its
Restricted Subsidiaries (other than any Receivables Subsidiary), directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to representations,
warranties, covenants and indemnities which are customary in an accounts receivable securitization
transaction (as determined in good faith by the Company).



               “Registration Rights Agreement” means (a) 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, Banc of America Securities LLC and J.P. Morgan Securities Inc. and (b) 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, and any Notes issued
in exchange therefor, under the Securities Act.



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



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



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



               “Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A
attached hereto bearing the Global Note Legend, the Private Placement Legend and the Temporary
Regulation S 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 at maturity of
the Notes initially sold in reliance on Rule 903 of Regulation S.



               “Related Parties” means, with respect to each of Gregory S. Daily and Carl A. Grimstad, any of
their respective family members or relatives, or trusts, partnerships or limited liability
companies for the benefit of any of them or any such family members or relatives, or any of their
respective heirs, executors, successors or legal representatives.



               “Related Taxes” means any taxes, charges or assessments (other than taxes measured by income)
required to be paid by any Parent by virtue of being organized or existing or having Capital Stock
outstanding, or being a holding company parent of, or receiving dividends, distributions or other
payment from the Company, any Restricted Subsidiary thereof or any Parent, or having guaranteed or
given any security interest in respect of any obligations of the Company or any Restricted
Subsidiary thereof, or having made any payment in respect of any Parent Expenses.



26









 





               “Replacement Assets” means (a) non-current assets that shall be used or useful in a Permitted
Business, (b) Merchant Portfolios and/or any related assets, or (c) substantially all the assets of
a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted
Business that shall become on the date of acquisition thereof a Restricted Subsidiary.



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



               “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration 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.



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



               “Restricted Period” means the 40-day restricted 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.



               “S&P” means Standard & Poor’s Ratings Services and any successor thereof.



               “SEC” or “Commission” means the United States Securities and Exchange Commission.



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



               “Senior Debt” of any Person means:



               (a) all Indebtedness of such Person outstanding under the Credit Agreement;



27









 





               (b) all Obligations of such Person in respect of any Receivables Financing;



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



               (d) all Obligations with respect to the items listed in the preceding clauses (a) and (b)
(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 shall not
include:



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



               (b) any Indebtedness of the Company or any Guarantor to any of their Subsidiaries;



               (c) any trade payables;



               (d) the portion of any Indebtedness that is Incurred in violation of Section 4.11 hereof;
provided that no such violation shall be deemed to exist for purposes of this clause (d) if a good
faith determination shall be made by the Board of Directors of the Company evidenced by a Board
Resolution or by the Chief Financial Officer of the Company evidenced by an officer’s certificate,
that any Indebtedness being Incurred under any Credit Facility is (or that the Incurrence of the
entire committed amount thereof at the date on which the initial borrowing thereunder is made would
be) permitted by Section 4.11 hereof;



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



               (f) any repurchase, redemption or other obligation in respect of Disqualified Stock or
Preferred Stock.



               “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 of the Securities Act.



               “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 shall 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.



28









 





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




	 	(a)	 	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

	 
	 	(b)	 	any partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general partners
of which are such Person or one or more Subsidiaries of such Person (or any combination
thereof).






               “Taxable Income” means, for or in respect of any Tax Period, the taxable income of the Company
determined for Federal income tax purposes as if the Company were an individual and directly or
indirectly wholly owned Subsidiaries of the Company were disregarded entities for Federal income
tax purposes.



               “Temporary Regulation S Legend” means the legend set forth in Section 2.07(h) hereof, which is
required to be placed on the Regulation S Temporary Global Note.



               “TIA” means the Trust Indenture Act of 1939, as amended.



               “Total Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries, as shown on the balance sheet of the Company as at the end of the most recent fiscal
period for which internal financial statements are available, prepared in conformity with GAAP.



               “Treasury Rate” means, with respect to any date of redemption, 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 period from such date of redemption to May 15, 2010; provided, however,
that if the period from such date of redemption to May 15, 2010 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 May 15, 2010 is less than one year,
the weekly average yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.



               “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.



29









 





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



               “Unrestricted Global Note” means a permanent Global Note substantially in the form of Exhibit
A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do 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 Section 4.15 hereof and any Subsidiary of such Subsidiary.



               “U.S. Person” means a U.S. person as defined in Rule 902(k) of Regulation S 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.



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




	 	(a)	 	the sum of the products obtained by multiplying (i) 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 (ii) the number
of years (calculated to the nearest one-twelfth) that shall elapse between such date
and the making of such payment; by

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






               “Wholly Owned Restricted Subsidiary” of any specified Person means a Restricted Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or Investments by foreign nationals mandated by applicable law) will
at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such
Person.



               “Wholly Owned Subsidiary” of any specified Person means a Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying
shares or Investments by foreign nationals mandated by applicable law) will at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person.




30










 








			
	Section 1.02	 	Other Definitions.






	 	 	 
	Term	 	Defined in Section
	 
	 	 
	“Act”

	 	 13.14 
	“Affiliate Transaction”

	 	 4.14 
	“Asset Sale Offer”

	 	 4.09 
	“Authentication Order”

	 	 2.02 
	“Beneficially Owned”

	 	 1.01
(“Beneficial Owner”)
	“Beneficially Owns”

	 	 1.01
(“Beneficial Owner”)
	“Calculation Date”

	 	 1.01
(“Fixed Charge
Coverage Ratio”)
	“Change of Control Offer”

	 	 4.08 
	“Change of Control Payment”

	 	 4.08 
	“Change of Control Payment Date”

	 	 4.08 
	“Company”

	 	Preamble
	“Covenant Defeasance”

	 	 8.03 
	“DTC”

	 	 2.04 
	“Excess Proceeds”

	 	 4.09 
	“Excess Proceeds Trigger Date”

	 	 4.09 
	“Event of Default”

	 	 6.01 
	“Flow-Through Entity”

	 	 4.10 
	“Guarantee Blockage Notice”

	 	 11.05(c) 
	“Incurred”

	 	1.01 (“Incur”)
	“Incurrence”

	 	1.01 (“Incur”)
	“Initial Lien”

	 	 4.07 
	“Legal Defeasance”

	 	 8.02 
	“Net Proceeds Amount”

	 	 4.09 
	“Nonpayment Default”

	 	 10.03 
	“Offer Amount”

	 	 4.08 
	“Offer Period”

	 	 4.08 
	“Paying Agent”

	 	 2.04 
	“Payment Blockage Notice”

	 	 10.03 
	“Payment Default”

	 	 10.03 
	“Permitted Debt”

	 	 4.11 
	“Permitted Payment”

	 	 4.10 
	“Purchase Date”

	 	 4.08 
	“Redemption Amount”

	 	 3.07 
	“Refinance”

	 	1.01
(“Permitted Refinancing
Indebtedness”)






31









 






	 	 	 
	Term	 	Defined in Section
	 
	 	 
	“Registrar”

	 	 2.04 
	“Related Judgment”

	 	 13.09 
	“Repurchase Offer”

	 	 3.09 
	“Restricted Payments”

	 	 4.10 
	“Specified Courts”

	 	 13.09 
	“Successor”

	 	 5.01 
	“Tax Period”

	 	1.01
(“Permitted Tax
Distribution”)
	“Trustee”

	 	 8.05 







			
	Section 1.03	 	Incorporation by Reference to the 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:




     “indenture securities” means the Notes;




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




     “indenture to be qualified” means this Indenture;




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




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



               All other terms used in this Indenture that are defined by the TIA, defined by the TIA
reference to another statute or defined by SEC rule 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;



32









 









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




       (e) provisions apply to successive events and transactions; and




       (f) 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 attached hereto. The Notes may have such appropriate insertions,
omissions, substitutions, notations, legends, endorsements, identifications and other variations as
are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to
which the Company is subject, if any, or other customary usage, or as may consistently herewith be
determined by the Officer or Officers of the Company executing such Notes, as evidenced by such
execution (provided always that any such notation, legend, endorsement, identification or variation
is in a form acceptable to the Company). Each Note shall be dated the date of its authentication.
The Notes shall be (i) issued in registered form without interest coupons and (ii) only 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 (to the fullest extent permitted by
applicable law) govern and be controlling.



               (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified 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, by adjustments made thereon
and/or in the records of the Custodian to reflect exchanges and redemptions as hereinafter
provided. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the



33









 







Trustee in accordance with instructions given by the Holder thereof as required by
Section 2.07 hereof.




               (c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall, unless
(in the case of Additional Notes) the Company otherwise notifies the Trustee in writing, be issued
initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf
of the purchasers of the Notes represented thereby with the Trustee at the Corporate Trust Office
of the Trustee, as Custodian, 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 Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent Global Notes pursuant to
the Applicable Procedures. Simultaneously with the authentication of Regulation S Permanent Global
Notes, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal
amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes may
from time to time be increased or decreased by adjustments made thereon and/or on the records of
the Trustee, the Custodian or the Depositary or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.




			
	Section 2.02	 	Execution and Authentication.






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



               (b) 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.



               (c) 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.



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



               (e) The Trustee shall, upon a written order of the Company signed by an Officer of the Company
(an “Authentication Order”), authenticate Notes for original issue with an unlimited maximum
aggregate principal amount, of which $205,000,000 shall be issued on the date of this Indenture.



               (f) 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.



34









 









			
	Section 2.03	 	Methods of Receiving Payments on the Notes.






               For so long as the Notes are held in one or more Global Notes, the Company shall pay all
principal, interest and premium and Additional Interest, if any in respect of the Notes represented
by Global Notes by wire transfer of immediately available funds to the account specified by the
Holder of the relevant Global Note (so long as such wire transfer may be so made). Otherwise, if a
Holder has given wire transfer instructions to the Company at least 30 days prior to the applicable
payment date, the Company shall pay all principal, interest and premium and Additional Interest, if
any, on that Holder’s Notes in accordance with those instructions (so long as such wire transfer
may be so made). All other payments on Notes shall be made at the office or agency of the Paying
Agent and Registrar 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 an office or agency where Notes may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may
be presented for payment (the “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 “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 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 Depository Trust Company (“DTC”) to act as Depositary
with respect to the Global Notes.



               (c) The Trustee shall initially act as the Paying Agent and the Registrar and shall act as
Custodian 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, 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



35









 







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
§ 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
§ 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) the Depositary notifies the Company that it is
unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not appointed by
the Company within 120 days after the date of such notice from the Depositary; (ii) the Company in
its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the Trustee; provided that in
no event shall the Regulation S Temporary Global Note be exchanged by the Company for Definitive
Notes prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or (iii)
there shall have occurred and be continuing a Default or Event of Default with respect to the
Notes, and the Depositary requests such exchange. 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 hereof. Except as otherwise provided above in this
Section 2.07(a), 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 hereof, 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) hereof.



               (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Neither the
Company nor any agent of the Company shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Global
Note, or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Beneficial interests in the Restricted Global Notes shall be



36









 







subject to
restrictions on transfer comparable to those set forth herein to the extent required by the
Securities Act, or for complying with or ensuring compliance with any Applicable Procedures.
Transfers of beneficial interests in the Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:




       (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note. Except as required pursuant to the
Private Placement Legend, 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 (in each case in form and substance satisfactory to the Trustee and the Company)
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’s
account to be credited with such increase or (B) (1) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred to in (1)
above; provided that in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S
Temporary Global Note prior to (x) the expiration of the Restricted Period and (y) the
receipt by the Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. 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, as the case may be, shall adjust the
principal amount at maturity of the relevant Global Notes pursuant to Section 2.07(h)
hereof.




       (iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global



37









 







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 attached hereto, including the certifications in item (1) thereof; and




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




       (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in the 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, provides the certifications required by the applicable Letter of
Transmittal and Exchange Offer Registration Statement;




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




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
applicable law; 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
attached hereto, including the certifications in item (1)(a) thereof; or




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



38









 









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 (which opinion and counsel are reasonably satisfactory to the Company and
the Trustee) 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 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.



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



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




       (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note as permitted by this Indenture 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 attached hereto, including the
certifications in item (2)(a) thereof;




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




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




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



39









 






     (E) 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 attached
hereto, including the certifications in item (3)(b) thereof; or




     (F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B attached hereto, including the certification in item 3(c)
thereof,




the Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.07(i) hereof, 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)(i)
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 Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.07(c)(i)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.




       (iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note as permitted by this Indenture or
may transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note as permitted by this Indenture only if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and applicable law and the holder
of such beneficial interest, in the case of an exchange, or the transferee, in the
case of a transfer, provides the certifications required by the applicable Letter of
Transmittal and the Exchange Offer Registration Statement;




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



40









 






     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement and
applicable law; 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 Definitive Note that does not
bear the Private Placement Legend, a certificate from such holder in the form of
Exhibit C attached hereto, including the certifications in item (1)(b) thereof; or




     (2) if the Holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such Holder in the form of Exhibit B attached hereto,
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 (which opinion and counsel are reasonably satisfactory to the Company and
the Trustee) 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 an Unrestricted Definitive Note as permitted by this
Indenture or to transfer such beneficial interest to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set
forth in Section 2.07(b)(ii) hereof, the Trustee shall cause the aggregate principal amount
of the applicable Global Note to be reduced accordingly pursuant to Section 2.07(i) hereof,
and the Company shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions an Unrestricted 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
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



41









 







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 attached hereto, including the certifications in
item (2)(b) thereof;




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




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




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




     (E) 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 attached
hereto, including the certifications in item (3)(b) thereof; or




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




the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased
the aggregate principal amount of, in the case of clause (A) above, the 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 and in all other cases the 144A
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 applicable law



42









 







and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer, provides
the certifications required by the applicable Letter of Transmittal and the Exchange
Offer Registration Statement;




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




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




     (D) the Registrar receives the following:




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




     (2) if the Holder of such Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B
attached hereto, 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 (which opinion
and counsel are reasonably acceptable to the Company and the Trustee) 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 Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.




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



43









 







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 for 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 and the Company 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
attached hereto, including the certifications in item (1) thereof;




     (B) if the transfer shall be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit B attached hereto,
including the certifications in item (2) thereof; 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 attached hereto, 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 applicable law and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer, provides
the certifications required by the applicable Letter of Transmittal and the Exchange
Offer Registration Statement;




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



44









 






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




     (D) the Registrar receives the following:




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




     (2) if the Holder of such Restricted Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit B attached
hereto, 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, an opinion of counsel (which opinion and counsel shall be
reasonably satisfactory to the Company and the Trustee) 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 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes and/or Unrestricted Definitive Notes in an aggregate principal amount equal to the
aggregate principal amount of the beneficial interests in the Restricted Global Notes, or the
Restricted Definitive Notes, as the case may be, accepted for exchange in the Exchange Offer in
accordance with the Registration Rights Agreement and applicable law. Concurrently with the
issuance of such Notes, the Trustee, the Custodian or the Depositary or its nominee, as the case
may be, shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly. Any Notes that remain
outstanding after the consummation of the Exchange Offer, and Exchange Notes issued in connection
with the Exchange Offer, shall be treated as a single class of securities under this Indenture.



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



45









 








               (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:




THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THIS SECURITY MAY NOT BE REOFFERED, SOLD, OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
“RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY
(A) TO THE COMPANY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EITHER OF THEM. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. THIS SECURITY MAY NOT BE REOFFERED, SOLD, OR OTHERWISE TRANSFERRED
TO AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, OR SECTION 4975 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY SIMILAR FEDERAL, STATE,
LOCAL OR NON U.S. LAW UNLESS



46









 







AN EXEMPTION OR EXCEPTION TO THE APPLICATION OF SUCH
PROVISIONS APPLIES.




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 OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



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




EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS
REGULATION S TEMPORARY GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE
REGULATION S PERMANENT GLOBAL NOTE OR ANY OTHER SECURITY REPRESENTING AN INTEREST IN
THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING
RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY DISTRIBUTION
COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(3) OF REGULATION S UNDER THE
SECURITIES ACT). DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE MAY ONLY
BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE
EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING S.A. NEITHER THE HOLDER NOR THE BENEFICIAL
OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.



47









 








               (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 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who 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 Custodian or 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 Custodian or the Depositary at the direction of the Trustee to reflect such
increase.



               (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 charge
payable upon exchange or transfer pursuant to Sections 2.11, 3.06, and 9.05 hereof).



               (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) Neither the Registrar nor the Company shall be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to exchange any Note
so selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.



48









 








               (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 hereof.



               (viii) All certifications, certificates and opinions of counsel required to be submitted to
the Trustee and/or the Company pursuant to this Section 2.07 to effect a registration of transfer
or exchange may be submitted by facsimile with the original to follow by first class mail.



               (ix) The Trustee shall retain copies of all letters, notices and other written communications
received pursuant to this Section 2.07 (including all Notes received for transfer pursuant to
Section 2.07). The Company shall have the right to require the Trustee to deliver to the Company,
at the Company’s expense, copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the Trustee.



               (x) In connection with any transfer of any Note, the Trustee and the Company shall be entitled
to receive, shall be under no duty to inquire into, may conclusively presume the correctness of,
and shall be fully protected in relying upon the certificates, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise)
received from any Holder and any transferee of any Note regarding the validity, legality and due
authorization of any such transfer, the eligibility of the transferee to receive such Note and any
other facts and circumstances related to such transfer.




			
	Section 2.08	 	Replacement Notes.






               (a) If any mutilated Note is surrendered to the Trustee or the Company and 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 and the Company’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



49









 







the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.09 as not outstanding. Except as set forth in Section 2.10 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Note.




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



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



               (d) If the Paying Agent (other than the Company, a Subsidiary 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.




			
	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



50









 







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 hereof. 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 such “CUSIP” and “ISIN” numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in any notice of a
redemption, 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” or “ISIN” numbers.



ARTICLE THREE



REDEMPTION AND PREPAYMENT





			
	Section 3.01	 	Notices to Trustee.






               If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days (unless a shorter notice
shall be satisfactory to the Trustee) 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 outstanding Notes are to be redeemed, 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
considers 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



51









 







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 at
maturity 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. 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 and upon surrender of such
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 and
Additional 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 or
ISIN 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 (unless a shorter notice shall be satisfactory to the Trustee) prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give



52









 







such notice and setting
forth the information to be stated in such notice as provided in Section 3.03(a) hereof. The
notice, if mailed in the manner provided herein, shall be presumed to have been given, whether or
not the Holder receives such notice.




               (c) The notice if mailed in the manner herein provided shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the redemption of any other
Note.




			
	Section 3.04	 	Effect of Notice of Redemption.






               Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.




			
	Section 3.05	 	Deposit of Redemption Price.






               (a) One Business Day prior to 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 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
interest on, all Notes to be redeemed.



               (b) If the Company complies with Section 3.05(a) hereof, on and after the redemption date,
interest and Additional Interest, if any, 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 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 on the redemption
date because of the failure of the Company to comply with Section 3.05(a) hereof, interest and
Additional Interest, if any, shall continue to accrue on the unpaid principal of such Note or the
portions thereof called for redemption from the redemption date until such principal is paid.




			
	Section 3.06	 	Notes Redeemed in Part.






               Upon surrender 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) At any time prior to May 15, 2009, the Company may redeem up to 35% of the aggregate
principal amount of Notes issued under this Indenture (including any Additional Notes) at a
redemption price of 109.750% of the principal amount thereof, plus accrued and



53









 







unpaid interest and
Additional Interest, if any, thereon to the redemption date, with the net cash proceeds of one or
more Equity Offerings (or an amount of funds equal thereto) at least equal to the principal amount
of Notes so redeemed (the “Redemption Amount”); provided that:





       (i) at least 65% of the aggregate principal amount of Notes issued under this Indenture
(including any Additional Notes) remains outstanding immediately after the occurrence of
such redemption; and




       (ii) the redemption must occur within 90 days of the date of the closing of such Equity
Offering.



               (b) At any time prior to May 15, 2010, the Company may, at its option, redeem all or 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.



               (c) Except pursuant to Sections 3.07(a) and (b) hereof, the Notes shall not be redeemable at
the Company’s option prior to May 15, 2010.



               (d) On or after May 15, 2010, 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
May 15, 2010 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	 
	 	 	 	 
	2010
	 	 	104.875	%
	 
	 	 	 	 
	2011
	 	 	102.438	%
	 
	 	 	 	 
	2012 and thereafter
	 	 	100.00	%






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




			
	Section 3.08	 	Mandatory Redemption.






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




54










 







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 one or more offices or agencies designated by it (which may be
an office of the Trustee or an agent of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of any such designation or rescission of any such designation,
and the location, and any change in the location, of such office or agency (other than the
designation and location specified in Section 4.02(b) hereof). 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 hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.04 hereof.



Section 4.03 Reports.




          (a) The Company shall furnish to the Trustee a copy of all of the information and reports
referred to in clauses (i) and (ii) below within the time periods specified in the Commission’s
rules and regulations for “non-accelerated filers” (as defined in such 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, together with a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and, with respect to the annual



55









 






information only, a report on the annual financial statements by the Company’s
certified independent accountants; and




     (ii) all current reports (excluding exhibits) 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 shall file the reports specified in Section 4.03(a)
hereof with the Commission within the time periods specified in Section 4.03(a) hereof unless the
Commission shall not accept such a filing. If, notwithstanding the foregoing, the Commission shall
not accept the Company’s filings for any reason, the Company shall post the reports referred to in
Section 4.03(a) hereof on its website within the time periods that would apply if the Company were
required to file those reports with the Commission (or, to the extent it is unable to do so,
furnish such reports to Holders and prospective purchasers of Notes, upon request).




          (c) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by this Section 4.03 shall include a
reasonably detailed presentation (as determined in good faith by the Company) in “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” of the financial
condition and results of operations of the Company and its Restricted Subsidiaries separate from
the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.




          (d) In addition, 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 has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge, the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and is 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 is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.




56









 





          (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.



Section 4.05 [Reserved].



Section 4.06 Stay, Extension and Usury Laws.




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




Section 4.07 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 of the Company or any Guarantor (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired (the “Initial Lien”), unless all payments
due under this Indenture and the Notes or, in respect of Liens on any Restricted Subsidiary’s
property or assets, any Note Guarantee of such Restricted Subsidiary, 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). Any such Lien thereby created in favor of
the Notes or any Note Guarantee shall be automatically and unconditionally released and discharged
(a) upon the release and discharge of the Initial Lien to which it relates, (b) in the case of any
such Lien in favor of any Note Guarantee, upon the termination and discharge of such Note Guarantee
pursuant to Section 11.04 hereof or (c) with respect to the property or assets sold, exchanged or
transferred, upon any sale, exchange or transfer to any Person not an Affiliate of the Company of
the property or assets secured by such Initial Lien or of all of the Capital Stock held by the
Company or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted
Subsidiary creating such Initial Lien, in each case in accordance with the provisions of this
Indenture.



Section 4.08 Offer to Repurchase upon a Change of Control.




          (a) 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 thereof) of that
Holder’s Notes pursuant to an offer (a “Change of Control Offer”) on the terms set forth in this
Indenture; provided that the Company shall not be obligated to repurchase Notes in the event that
it has exercised its right to redeem all of the Notes pursuant to Section 3.07 hereof. In the
Change of Control Offer, the Company shall offer payment (a “Change of




57









 




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 shall 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 shall 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 this Indenture and
described in such notice. If such notice is mailed prior to the occurrence of such Change of
Control, such notice shall state that such offer is conditioned on such occurrence. To the extent
that the provisions of any securities laws or regulations conflict with the Change of Control
provisions of this Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations 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; provided that no Note will be repurchased in part if less than
$1,000 in principal amount of such Note would be left outstanding; provided further that if
all the Notes of a Holder are to be repurchased, the entire outstanding amount of the Notes
held by such Holder, even if not a multiple of $1,000, shall be repurchased;




     (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 shall promptly mail or wire transfer to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee shall 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 shall be
in a principal amount of $1,000 or an integral multiple thereof.




          (d) Prior to complying with the provisions of this Section 4.08, but in any event no later
than 30 days following a Change of Control, the Company shall either obtain the requisite consents,
if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Notes
required by this Section 4.08 or repay any such Senior Debt for which such consent is required and
has not been obtained. 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.




58









 





          (e) Notwithstanding anything to the contrary in this Section 4.08, 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 this Section 4.08 and all other provisions of this 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.




          (f) In the event that, pursuant to this Section 4.08 hereof, the Company shall be required to
commence an offer to all Holders to purchase their respective Notes (a “Repurchase Offer”), it
shall follow the procedures specified below.




          The Repurchase Offer shall remain open for a period of 30 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Purchase Date”), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to this Section 4.08 hereof (the “Offer Amount”) or, if less than the Offer
Amount has been tendered, all Notes tendered in response to the Repurchase Offer. Payment for any
Notes so purchased shall be made in the same manner as interest payments are made.




          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 to each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Repurchase Offer.




          The Repurchase Offer shall be made to all Holders. The notice, which shall govern the terms
of the Repurchase Offer, shall state:





     (i) that the Repurchase Offer is being made pursuant to this Section 4.08, 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 accrete or
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 accrete or
accrue interest and Additional Interest, if any, on and 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; provided



59









 






that if all the Notes of a Holder are to be repurchased, the entire outstanding amount
of the Notes held by such Holder, even if not a multiple of $1,000, may be repurchased;




     (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 his election to have such Note purchased;




     (viii) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall select the Notes to be purchased in accordance with the terms of
this Section 4.08(f) (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, subject to the proviso in clause (v) above); 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, 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 4.08. If less than all of the outstanding Notes are to be repurchased, the Trustee shall
select the Notes to be repurchased 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 considers fair and appropriate. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five days after the
Purchase 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 at
maturity 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.




60









 





          (g) 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 the provisions of
this Section 4.08, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.08, by virtue of such
conflict.



Section 4.09 Offer to Repurchase upon an Asset Sale.




          (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




     (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 thereof. For purposes of this provision, each of the following shall 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 express terms subordinated in
right of payment to the Notes or any Note Guarantee and liabilities to the extent
owed to the Company or any Restricted Subsidiary of the Company) (i) that are
assumed by the transferee of any such assets or Equity Interests pursuant to a
written agreement that releases the Company or such Restricted Subsidiary from
further liability therefor or (ii) in respect of which the Company or such
Restricted Subsidiary has no obligation following such Asset Sale;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash (to the extent of the cash received in that
conversion) within 90 days following the closing of such Asset Sale; and




     (C) any Designated Non-cash Consideration received by the Company or any such
Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value,
taken together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding and any then outstanding
Investments made pursuant to clause (n) of the definition of Permitted Investments,
not to exceed the greater of (x) $25,000,000 and (y) 8% of Total Assets at the time
of the receipt of such Designated Non-cash Consideration, with the Fair Market Value
of each item of Designated Non-cash Consideration being



61









 






measured at the time received and without giving effect to subsequent changes
in value.



          (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or
its Restricted Subsidiaries may apply an amount equal to all or part of the amount of 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 (A) make capital expenditures or (B) purchase Replacement Assets (or enter into
a binding agreement to purchase any such Replacement Assets; provided that (x) such purchase
is consummated within 60 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 shall be deemed to be Excess Proceeds (as defined below)).



     (c) Pending the final application of an amount equal to the amount of any such Net Proceeds
(such equal amount, the “Net Proceeds Amount”), the Company may temporarily reduce revolving credit
borrowings or otherwise invest or apply such Net Proceeds in any manner that is not prohibited by
this Indenture.



     (d) On the 366th day after the receipt of any Net Proceeds from an Asset Sale (or, in the
event that a binding agreement has been entered into pursuant to Section 4.09(b)(ii) hereof, the
later date of expiration of the 60-day period set forth in Section 4.09(b)(ii) hereof) or such
earlier date, if any, as the Company determines not to apply any portion of the Net Proceeds Amount
relating to such Asset Sale as set forth in Section 4.09(b) hereof (each such date being referred
as an “Excess Proceeds Trigger Date”), such aggregate Net Proceeds Amount that has not been applied
on or before the Excess Proceeds Trigger Date as permitted in Section 4.09(b) hereof (“Excess
Proceeds”) shall be applied by the Company to make an offer (an “Asset Sale Offer”) to all Holders
of Notes and (to the extent the Company elects) all holders of other Indebtedness that is pari
passu with the Notes or any Note Guarantee, to purchase the maximum principal amount of Notes and
such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer
price in any Asset Sale Offer shall 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 shall be payable in cash.



     (e) The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess
Proceeds equal to or in excess of $10,000,000 resulting from one or more Asset Sales, at which time
the entire unutilized amount of Excess Proceeds (not only the amount in excess of $10,000,000)
shall be applied as provided in Section 4.09(d) hereof. 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 this 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 shall be purchased on a pro rata basis based on
the principal amount of Notes and such other pari passu Indebtedness tendered. No Note shall be
repurchased in part if less than $1,000 in



62









 




principal amount of such Note would be left outstanding. Upon completion of each Asset Sale
Offer, the Excess Proceeds subject to such Asset Sale Offer shall no longer be deemed to be Excess
Proceeds.




          (f) 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 this Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the Asset Sale
provisions of this Indenture by virtue of such compliance.



Section 4.10 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 held by Persons other than
the Company or any of its Restricted Subsidiaries;




     (iii) make any principal payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that
is expressly subordinated in right of payment to the Notes or any Note Guarantees and is
held by Persons other than the Company or any of its Restricted Subsidiaries, except (A) a
payment of principal at the Stated Maturity thereof (including any scheduled sinking fund
payment, scheduled principal payment or payment at final maturity) or (B) the purchase,
redemption, defeasance or other acquisition or retirement 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, redemption,
defeasance or other acquisition or retirement; 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:




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




     (B) the Company would have been permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.11(a)
hereof; and




     (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 (ii) through (vi), (viii) through (x) and (xi)
(which shall be included therein only to the extent of one half of the amounts paid pursuant
to such clause (xi)) and only to the extent Consolidated Net Income is not reduced by such
amounts) of Section 4.10(b) hereof, 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 (x) from repayments of loans
or advances, or other transfers of assets or returns of capital, in each case to the
Company or any Restricted Subsidiary or from the net cash proceeds and Fair Market
Value of assets (other than cash) received from the sale or other disposition of any
such Restricted Investment (except, in each case, to the extent any such payment or
proceeds are (at the Company’s option) included in the calculation of Consolidated
Net Income for the purposes of clause (C)(1) above or applied to reduce the amount
of Investments made pursuant to Section 4.10(b)(xiii) hereof pursuant to the last
paragraph of the definition of Investments in Article One hereof), (y) from the
release of any Guarantee (except to the extent any amounts are paid under such
Guarantee) or (z) 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 after the
Issue Date.



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          (b) The preceding provisions shall not prohibit, so long as, in the case of clauses (vii) and
(xiii) below, no Default has occurred and is continuing or would be caused thereby, any of the
following (each, a “Permitted Payment”):





     (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 or making of any other payment or distribution by a
Restricted Subsidiary of the Company to holders of any series of its Equity Interests on a
pro rata basis (or, in the case of holders other than the Company and its Restricted
Subsidiaries, on no more than a pro rata basis, and in the case of the Company and its
Restricted Subsidiaries, on at least a pro rata basis), measured by value;




     (iii) the purchase, redemption, defeasance or other acquisition or retirement of any
subordinated Indebtedness 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 common equity 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 purchase, redemption, defeasance or other acquisition or retirement shall be
excluded from Section 4.10(a)(C)(2) hereof;




     (iv) the purchase, redemption, defeasance or other acquisition or retirement 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 the Company, or in exchange for,
or out of the net cash proceeds of a substantially concurrent sale (other than to a
Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified
Stock) or any Parent; provided that the amount of any such net cash proceeds that are
utilized for any such acquisition or exchange shall be excluded from Section 4.10(a)(C)(2)
hereof;




     (vi) the purchase of Equity Interests deemed to occur upon the exercise of options or
warrants to the extent that such Equity Interests represent all or a portion of the exercise
price thereof or taxes due in connection with such exercise;




     (vii) the purchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Parent held by any current or former employee,
officer or director of the Company or any of its Subsidiaries or any other Management
Investor, including pursuant to the terms of any employment agreement, employee equity
subscription agreement, stock option agreement or similar agreement or otherwise, and any
loan, advance, dividend or distribution by the Company to any Parent to permit any Parent to
make any such purchase, redemption or other acquisition or retirement for value; provided
that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity
Interests in any calendar year shall not exceed



65









 






$2,500,000 in any calendar year, with unused amounts in any calendar year being carried
over to succeeding calendar years (which amount shall be increased by the amount of any cash
proceeds received by the Company after the Issue Date to the extent not already applied in
any prior calendar year to make repurchases pursuant to this clause (vii) from, or as a
contribution to its capital from, (x) sales of Equity Interests (other than Disqualified
Stock of the Company) to Management Investors to the extent the cash proceeds have not
otherwise been applied to the payment of Restricted Payments by virtue of Section
4.10(a)(C)(2) hereof and (y) any “key man” life insurance policies);




     (viii) dividends on Preferred Stock of a Restricted Subsidiary of the Company or on
Disqualified Stock of the Company or its Restricted Subsidiaries issued in accordance with
Section 4.11 hereof to the extent such dividends are included in the definition of Fixed
Charges;




     (ix) any Restricted Payment made pursuant to the Merger Agreement;




     (x) the payment of dividends or making of other payments or distributions by the
Company to holders of its Equity Interests (x) for so long as the Company is treated as an S
corporation or a qualified subchapter S subsidiary for Federal income tax purposes (a
“Flow-Through Entity”), in an amount equal to the Permitted Tax Distributions and (y) for so
long as the Company is not a Flow-Through Entity but is a member of a consolidated, combined
or unitary income tax group of which it is not the common parent, in amounts required to pay
Federal, state, local and foreign income tax obligations imposed to the extent such income
taxes are attributable to the income of the Company and its Subsidiaries; provided, however,
in each case the amount of such payments in respect of any Tax Period does not exceed the
amount that the Company and its Subsidiaries would have been required to pay in respect of
Federal, state, local and foreign income taxes in respect of such Tax Period determined
using the Assumed Tax Rate as if the Company and its Subsidiaries filed separate income tax
returns on a separate company basis;




     (xi) without duplication as to amounts dividended or distributed pursuant to Section
4.10(b)(x) hereof, loans, advances, dividends or distributions to any Parent or other
payments by the Company or any of its Restricted Subsidiaries to pay or permit any Parent to
pay Parent Expenses;




     (xii) any principal payment on or with respect to any Indebtedness of the Company or
any Guarantor that is expressly subordinated in right of payment to the Notes or any Note
Guarantee (x) made from Net Proceeds to the extent permitted by Section 4.09 hereof and (y)
following the occurrence of a Change of Control (or other similar event described therein as
a “change of control”), but only if the Company shall have complied with Section 4.08 hereof
and, if required, purchased all Notes tendered pursuant to the offer to repurchase all the
Notes required thereby, prior to repaying any such Indebtedness; or




     (xiii) other Restricted Payments in an aggregate amount (net of amounts reducing the
amount of any Investment made pursuant to this Section 4.10(b)(xiii) in



66









 






accordance with the last paragraph of the definition of Investments in Article One
hereof not to exceed $15,000,000.



          (c) The amount of all Restricted Payments (other than cash) shall 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 30 days after the date of making any Restricted Payment (other than a
Permitted Payment), which alone or combined with all other Restricted Payments with respect to
which the Company has not previously delivered a certification pursuant to this Section 4.10(c)
have an aggregate Fair Market Value in excess of $5,000,000, 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 4.10 were made, together with
a copy of any opinion or appraisal required by this Indenture.



Section 4.11 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, 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 Indebtedness 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 Indebtedness had been Incurred at the beginning of such four-quarter period.




          (b) Section 4.11(a) hereof shall not prohibit the Incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):





     (i) Indebtedness of the Company or any of its Restricted Subsidiaries under Credit
Facilities (including, without limitation, the Incurrence of Guarantees thereof) in an
aggregate principal amount (or face amount in the case of letters of credit) at any one time
outstanding pursuant to this Section 4.11(b)(i) not to exceed $615,000,000, less the
aggregate principal amount of Indebtedness Incurred and outstanding pursuant to this Section
4.11(b)(i) that has been permanently repaid (with a corresponding commitment reduction, in
the case of revolving credit Indebtedness) out of the Net Proceeds of Asset Sales by the
Company or any Restricted Subsidiary thereof pursuant to Section 4.09 hereof;




     (ii) Existing Indebtedness;




     (iii) Indebtedness represented by the Notes (other than any Additional Notes) and the
related Note Guarantees;




     (iv) Indebtedness represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case, Incurred for the purpose of financing or
refinancing all or any part of the purchase price or cost of construction or improvement of
property, plant, equipment or other assets used or to be used in the business of the Company
or any Restricted Subsidiary, in an aggregate principal amount,



67









 






including all Permitted Refinancing Indebtedness Incurred pursuant to Section
4.11(b)(v) hereof to refund, refinance or replace any Indebtedness Incurred pursuant to this
Section 4.11(b)(iv), not to exceed $15,000,000 at any time outstanding;




     (v) Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace Indebtedness that was permitted by this Indenture
to be Incurred under Section 4.11(a) or (b)(ii), (iii), (iv), (v), (xiv) or (xv) hereof;




     (vi) Indebtedness of the Company or any of its Restricted Subsidiaries 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 (and
such Indebtedness is held by a Restricted Subsidiary that is not a Guarantor), such
Indebtedness must be expressly subordinated in right of payment to the prior payment
in full of all Obligations with respect to the Notes, in the case of the Company, or
the Note Guarantee, in the case of a Guarantor; and




     (B) (x) 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 (y) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary thereof, shall 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 Section 4.11(b)(vi);




     (vii) the Guarantee of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be Incurred by another provision of this Section 4.11;




     (viii) 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;




     (ix) 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 (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
does not exceed the gross proceeds actually received by the Company or any Restricted
Subsidiary thereof in connection with such disposition;



68









 






     (x) 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;




     (xi) Indebtedness constituting reimbursement obligations with respect to letters of
credit provided or issued in the ordinary course of business; provided that, upon the
drawing of such letters of credit in an aggregate face amount equal to or exceeding
$10,000,000, such obligations are reimbursed within 30 days following such drawing or
Incurrence (it being understood that any failure to make such reimbursement shall not cause
such Indebtedness not to be Senior Debt);




     (xii) Indebtedness (x) in respect of performance, surety, appeal or other similar
bonds, bankers’ acceptances, or other similar instruments or obligations provided or issued,
or relating to liabilities or obligations (other than to support an obligation for borrowed
money) incurred, in the ordinary course of business or (y) in respect of the financing of
insurance premiums in the ordinary course of business;




     (xiii) Indebtedness to the extent that the net proceeds thereof are promptly deposited
to defease or to satisfy and discharge the Notes;




     (xiv) Indebtedness of Persons that are acquired by the Company or any Restricted
Subsidiary of the Company or consolidated or merged with or into the Company or a Restricted
Subsidiary of the Company in accordance with the terms of this Indenture; provided that such
Indebtedness is not Incurred in contemplation of such acquisition, consolidation or merger;
and provided further that after giving effect to such acquisition, consolidation or merger
(x) the Company would be permitted to Incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.11(a) hereof or (y)
the Company’s Fixed Charge Coverage Ratio is greater than immediately prior to such
acquisition, consolidation or merger; or




     (xv) Indebtedness (x) issued by the Company or any of its Restricted Subsidiaries to a
seller or any Affiliate thereof as part of the consideration for an acquisition of assets,
Merchant Portfolios, a business or a Subsidiary by the Company or any Restricted Subsidiary
or (y) consisting of or arising from agreements providing for earn outs or similar
obligations Incurred in connection with the acquisition of any business, assets, Merchant
Portfolio or Person, in an aggregate principal amount including all Permitted Refinancing
Indebtedness Incurred pursuant to Section 4.11(b)(v) hereof to refund, refinance or replace
Indebtedness Incurred pursuant to this Section 4.11(b)(xv), not to exceed $10,000,000 at any
time outstanding;




     (xvi) Indebtedness (x) of a Receivables Subsidiary secured by a Lien on all or part of
the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition
or (y) otherwise Incurred in connection with a Receivables Financing; and




     (xvii) Indebtedness in an aggregate principal amount at any time outstanding not to
exceed $50,000,000.



69









 





          (c) For purposes of determining compliance with this Section 4.11, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in compliance with this
Section 4.11, (i) any other obligation of the obligor on such Indebtedness (or of any other Person
who could have Incurred such Indebtedness pursuant to this Section 4.11) arising under any
Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation
supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter
of credit, bankers’ acceptance or other similar instrument or obligation secures the principal
amount of such Indebtedness; and (ii) in the event that any proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in Section 4.11(b) hereof,
or is entitled to be Incurred pursuant to Section 4.11(a) hereof, the Company shall be permitted to
classify such item of Indebtedness as of the time of its Incurrence in any manner that complies
with this Section 4.11 (and may include the amount and type of such Indebtedness in one or more of
such clauses, including in part under one such clause and in part under another such clause). In
addition, any Indebtedness originally classified as Incurred pursuant to clauses (i) through (xvii)
of Section 4.11(b) hereof may later be reclassified by the Company such that it shall 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 shall be deemed to have been Incurred on such date in reliance on the exception provided by
clause (i) of the definition of Permitted Debt.




          (d) For purposes of determining compliance with any dollar-denominated restriction on the
Incurrence of Indebtedness denominated in a foreign currency, the dollar-equivalent principal
amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant
currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of
term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that
if such Indebtedness is Incurred to refund, refinance or replace other Indebtedness denominated in
a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such
refinancing would cause the applicable dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such refinancing, such
dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal
amount of such new Indebtedness does not exceed (i) the outstanding or committed principal amount
(whichever is higher) of such Indebtedness being refunded, refinanced or replaced plus (ii) the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in
connection with such refinancing. The principal amount of any Indebtedness Incurred to refund,
refinance or replace other Indebtedness, if Incurred in a different currency from the Indebtedness
being refunded, refinanced or replaced, shall otherwise be calculated based on the currency
exchange rate applicable to the currencies in which such respective Indebtedness is denominated
that is in effect on the date of such refunding, refinancing or replacement.




          (e) Notwithstanding any other provision of this Section 4.11, the maximum amount of
Indebtedness that may be Incurred pursuant to this Section 4.11 shall 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.




70









 




Section 4.12 Limitation on Senior Subordinated Debt.




          The Company shall not Incur any Indebtedness that is expressly subordinated in right of
payment to any Senior Debt of the Company unless it is pari passu or subordinate in right of
payment to the Notes. No Guarantor shall Incur any Indebtedness that is expressly subordinated in
right of payment to the Senior Debt of such Guarantor unless it is pari passu or subordinate in
right of payment to such Guarantor’s Note Guarantee. For purposes of the foregoing, no
Indebtedness shall 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 any Liens or Guarantees arising or
created in respect of such other Indebtedness of the Company or any Guarantor, or by reason of any
priority of any Lien over any other Lien, 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 4.13 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




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




     provided that dividend or liquidation priority between classes of Capital Stock, or
subordination of any obligation (including application of any remedy bar thereto) to any
other obligation, shall not be deemed to constitute such an encumbrance or restriction.



          (b) However, the restrictions set forth in Section 4.13(a) hereof shall 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,
replacements or refinancings are (in the good faith determination of the Board of Directors
or senior management of the Company) not materially 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;



71









 






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




     (iii) existing under, by reason of or with respect to applicable law, rule, regulation
or order, or required by any regulatory authority having jurisdiction over the Company or
any Restricted Subsidiary or any of their businesses;




     (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,
replacements or refinancings are (in the good faith determination of the Board of Directors
or senior management of the Company) not materially more restrictive, taken as a whole, than
those in effect on the date of the acquisition; provided that for purposes of this Section
4.13(b)(iv), if a Person other than the Company is the Successor in a transaction pursuant
to Section 5.01 hereof, any Subsidiary of such Person or property or assets of any such
Subsidiary shall be deemed acquired by the Company or a Restricted Subsidiary, as the case
may be, when such Person becomes such Successor;



	 	 	 	 	 	 	 
	 

	 	(v)
	 	(A)
	 	that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is or is subject to 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 or
easement relating to, any property or assets of the Company or any
Restricted Subsidiary thereof not otherwise prohibited by this
Indenture; or
	 
	 	 	 	 	 	 
	 

	 	 	 	(C)
	 	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;




     (vii) with respect to cash or other deposits or net worth imposed or required by
customers, suppliers, sponsoring banks, processors or vendors or by insurance, surety or
bonding companies, in each case, under agreements entered into in the ordinary course of
business;



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     (viii) pursuant to (x) purchase money obligations not otherwise prohibited by this
Indenture that impose encumbrances or restrictions on the property or assets so acquired, or
(y) Hedging Obligations;




     (ix) existing under, by reason of or with respect to any Indebtedness Incurred
subsequent to the Issue Date if (in the good faith determination of the Board of Directors
or senior management of the Company) such encumbrances and restrictions taken as a whole (A)
are not materially less favorable to the Holders of the Notes than the encumbrances and
restrictions in effect on the Issue Date, or (B) are not materially more disadvantageous to
the Holders of the Notes than is customary in comparable financings and (in the case of this
clause (B)) the relevant encumbrance or restriction shall not materially affect the
Company’s ability to make principal or interest payments on the Notes;




     (x) existing under, by reason of or with respect to customary provisions contained in
agreements or other documents governing a joint venture, partnership or similar arrangements
entered into in the ordinary course of business; or




     (xi) pursuant to an agreement or instrument relating to Indebtedness of or a Financing
Disposition to or by any Receivables Entity.


Section 4.14 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 primarily for
the benefit of, any Affiliate of the Company (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




     (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 $3,000,000, a Board
Resolution set forth in an Officers’ Certificate certifying that such Affiliate
Transaction or series of related Affiliate Transactions complies with this Section
4.14 and that such Affiliate Transaction or series of related Affiliate Transactions
has been approved by a majority of the Disinterested Directors of the Board of
Directors of the Company; provided that at any time during which no Disinterested
Director is serving on such Board of Directors, no such Board Resolution or approval
shall be required if the Company delivers to the Trustee a



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fairness opinion meeting the requirements of Section 4.14(a)(ii)(B) hereof with
respect to such Affiliate Transaction; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10,000,000, 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 shall not be deemed to be Affiliate Transactions and shall not be
subject to the provisions of Section 4.14(a) hereof:





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




     (ii) payment of reasonable and customary fees to, and reasonable and customary
indemnification and similar payments on behalf of, directors of the Company (as determined
in good faith by the Company’s Board of Directors);




     (iii) Restricted Payments that are permitted by the provisions of this Indenture
described under Section 4.10 hereof and Permitted Payments and transactions excluded from
the definition of Restricted Payments;




     (iv) any offering, issuance, sale or transfer of Equity Interests (other than
Disqualified Stock) of the Company or capital contribution to the Company;




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




     (vi) 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 transactions pursuant thereto; 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 is in the ordinary course of business or has been approved by the Board
of Directors of the Company;




     (vii) the granting or performance of registration rights under a written registration
rights agreement approved by the Board of Directors of the Company and containing customary
terms, taken as a whole;



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     (viii) transactions with Persons solely in their capacity as holders of Indebtedness or
Capital Stock of the Company or any of its Restricted Subsidiaries, where such Persons are
treated no more favorably than holders of Indebtedness or Capital Stock of the Company or
such Restricted Subsidiary generally;




     (ix) any transaction in the ordinary course of business with customers, suppliers,
joint ventures, joint venture partners, sales agents, sales representatives, independent
sales groups or sellers of goods and services on terms not less favorable to the Company or
the relevant Restricted Subsidiary than those that could be obtained at the time in a
transaction with a Person who is not an Affiliate of the Company;




     (x) execution, delivery and performance of a tax sharing agreement with respect to any
of the Permitted Payments described in Section 4.10(b)(x) hereof or any Related Taxes;




     (xi) the transactions contemplated by the Merger Agreement, all transactions in
connection therewith (including, but not limited to, the financing thereof), and all fees
and expenses paid or payable in connection with such transactions;




     (xii) any transaction in the ordinary course of business or approved by a majority of
the Board of Directors of the Company between the Company or any Restricted Subsidiary and
any Affiliate of the Company that is a joint venture or similar entity controlled by the
Company (and of which no other Affiliate of the Company (other than any Subsidiary thereof)
directly or indirectly holds any Capital Stock); and




     (xiii) any agreement to do any of the foregoing.


Section 4.15 Designation of Restricted and Unrestricted Subsidiaries.




          (a) The Board of Directors of the Company may designate any Restricted Subsidiary of the
Company (other than any co-obligor of the Notes created pursuant to Section 5.01 hereof) 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 4.11 hereof;




     (ii) (A) the Subsidiary to be so designated has total consolidated assets of $1,000 or
less or (B) if the Subsidiary being so designated has consolidated assets greater than
$1,000, then 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 thereof 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 4.10 hereof;



75









 






     (iii) such Subsidiary does not hold any Liens on any property of the Company or any
Restricted Subsidiary thereof at the time of such designation;




     (iv) at the time of such designation the Subsidiary being so designated:




     (A) 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 legal obligation (x) to subscribe
for additional Equity Interests or (y) 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




     (v) no Default or Event of Default would be in existence upon giving effect to such
designation.



          (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.




          (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 shall 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 shall only be permitted if such Indebtedness is permitted
under Section 4.11 hereof;




     (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 4.10 hereof;




     (iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.07 hereof; and




     (iv) no Default or Event of Default would be in existence upon giving effect to such
designation.



76









 




Section 4.16 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 4.17 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
this 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 on the same terms and conditions and in
the time frame set forth in the solicitation documents relating to such consent, waiver or
agreement.



Section 4.18 Guarantees.




          (a) The Company shall not permit any of its Restricted Subsidiaries, directly or indirectly,
to Guarantee any other Indebtedness of the Company or any Guarantor unless such Restricted
Subsidiary is a Guarantor or substantially concurrently executes and delivers to the Trustee an
Opinion of Counsel and a supplemental indenture providing for the Guarantee of the payment of the
Notes by such Restricted Subsidiary, which Guarantee shall 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 as
provided in this Indenture.




          (b) Except as otherwise provided in this Section 4.18 or Section 11.04 hereof, a Guarantor may
not 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 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 this Indenture, its Note Guarantee and the
Registration Rights Agreement pursuant to one or more agreements in form reasonably
satisfactory to the Trustee; or




     (B) such consolidation or merger complies with Section 4.09 hereof, to the
extent applicable.




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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, lease 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: (A) the Company is the surviving corporation, limited liability company or
limited partnership; or (B) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (such Person, as the case may be, the
“Successor”) (1) is a corporation, limited liability company or limited partnership
organized or existing under the laws of the United States, any state thereof or the District
of Columbia; and (2) assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to one or more agreements in form
reasonably satisfactory to the Trustee (provided that if the Company or Successor is not a
corporation there must be a co-obligor of the Notes that is a Wholly Owned Restricted
Subsidiary and that is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia);




       (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, (A) the
Company or the Successor shall be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.11(a)
hereof; or (B) the Fixed Charge Coverage Ratio of the Company or the Successor would be
greater than such ratio of the Company immediately prior to such transaction;




       (iv) each Guarantor, unless such Guarantor is (A) a Guarantor that shall be released
from its obligations under its Note Guarantee in connection with such transaction or (B) the
Person with which the Company has entered into a transaction under this Section 5.01, shall
have confirmed in writing that its Note Guarantee shall apply to the obligations of the
Company or the surviving Person in accordance with the Notes and this Indenture; and




       (v) the Company delivers to the Trustee an Officers’ Certificate and Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to
such consolidation, transfer or disposition have been complied with.



               (b) Upon any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or
other disposition of all or substantially all of the assets of the Company in accordance with this
Section 5.01, the Successor formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, conveyance, lease or



78









 




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, lease or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the Successor 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 had been named as the Company in this Indenture, and thereafter the predecessor Company
shall be relieved of all obligations and covenants under this Indenture and the Notes, except that
the predecessor Company in the case of a lease of all or substantially all its assets shall not be
released from the obligations under this Indenture or the Notes.




               (c) Section 5.01(a)(iii) hereof shall not apply to (i) any merger, consolidation or sale,
assignment, transfer, conveyance, lease or other disposition of assets of, between or among the
Company and any of its Restricted Subsidiaries, or (ii) any transaction in which the Company
consolidates or merges with or into or transfers all or substantially all its properties and assets
to an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the
Company in another jurisdiction or changing its legal structure to a corporation or other entity.
Section 5.01(a)(ii) hereof shall not apply to any merger, consolidation or sale, assignment,
transfer, conveyance, lease or other disposition of assets in which the surviving Person or the
Person to which such sale, assignment, transfer, conveyance, lease or other disposition is made is
the Company or a Guarantor.



               (d) Section 5.01(a) hereof shall not apply to any of the transactions contemplated by the
Merger Agreement.



ARTICLE SIX

DEFAULTS AND REMEDIES





			
	Section 6.01	 	Events of Default.






               Each of the following is an Event of Default:




       (a) 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 Ten or Section 11.05 of this
Indenture;




       (b) 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 Ten or Section 11.05 of this Indenture;




       (c) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described in Section 4.08 or 5.01 hereof;




       (d) failure by the Company or any of its Restricted Subsidiaries for 30 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 this Indenture;



79









 






       (e) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness by the Company or any of its
Restricted Subsidiaries whether such Indebtedness now exists, or is created after the Issue
Date, if that default:




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




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




and, in each case, the amount of any such Indebtedness, together with the amount of any
other such Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $10,000,000 or more;




       (f) failure by the Company or any of its Significant Subsidiaries (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) aggregating in excess of $10,000,000, which
judgments are not paid, discharged or stayed for a period of 60 days;




       (g) except as permitted by this Indenture, any Note Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect or any Guarantor denies or disaffirms in writing its obligations under its
Note Guarantee;




       (h) the Company 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:




       (i) commences a voluntary case, or




       (ii) consents to the entry of an order for relief against it in an involuntary
case, or




       (iii) consents to the appointment of a custodian of it or for all or
substantially all of its property, or




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




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




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




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



80









 






       (ii) appoints a custodian of the Company or any Significant Subsidiary of the
Company (or any Restricted Subsidiaries that together would constitute a Significant
Subsidiary), for all or substantially all of the property of the Company, or




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






               If any Event of Default (other than an Event of Default specified in Section 6.01(h) or (i))
occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all principal of and accrued and unpaid interest and Additional
Interest, if any, on 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 shall be outstanding, that acceleration
shall not be effective until the earlier of (i) an acceleration of Indebtedness under the Credit
Agreement; or (ii) five Business Days after receipt by the Company and the Agent under the Credit
Agreement of written notice of the acceleration of the Notes. Upon any such declaration, the Notes
shall become due and payable immediately. If any Event of Default specified in Section 6.01(h) and
(i) occurs and is continuing, then the principal, premium, if any, accrued interest and Additional
Interest, if any, on the Notes shall ipso facto become and be immediately due and payable without
any declaration or other action on the part of the Trustee or any Holder.




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



81









 




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 hereunder and under 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, 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.






               Holders of a majority in principal amount of the then outstanding Notes may 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 the Trustee determines in good faith may be unduly prejudicial to the rights of other Holders
of Notes or not joining in the giving of such direction that may involve the Trustee in personal
liability, 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 pursue a remedy with respect to this Indenture, or the Notes or the Note
Guarantees only if:




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




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




       (iii) such Holder of a Note or Holders of Notes offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense that might be incurred
by it in connection with the request or direction;




       (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 then 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.



82









 






			
	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 or interest on, and Additional Interest, if any, with respect to,
the Note, on or after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.




			
	Section 6.08	 	Collection Suit by Trustee.






               If an Event of Default specified in Section 6.01(a) or (b) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the 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 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall constitute a claim, 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.



83









 






			
	Section 6.10	 	Priorities.






               (a) If the Trustee collects any money pursuant to this Article, 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
hereof, including payment of all compensation, expenses 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 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 hereof, or a suit
by Holders of more than 10% in principal amount of the then outstanding Notes.



ARTICLE SEVEN

TRUSTEE





			
	Section 7.01	 	Duties of Trustee.






               (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.



               (b) Except during the continuance of an Event of Default:




       (i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and



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       (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:




       (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
hereof.



               (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.



               (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or Incur any liability.



               (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 (unless other evidence be herein
specifically prescribed) require an Officers’ Certificate. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’ Certificate. 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.



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               (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.



               (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 13.02 hereof, 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 hereof.




			
	Section 7.04	 	Trustee’s Disclaimer.






               The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, 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 in payment of principal
of, premium and Additional Interest, if any, or 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.



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	Section 7.06	 	Reports by Trustee to Holders of the Notes.






               (a) Within 60 days after each May 15 beginning with the May 15, 2007, 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 § 313(a) (but if no event described in TIA § 313(a) has
occurred within the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA § 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 § 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
accordance with any provision of this Indenture, except any such disbursement, advance or expense
attributable to its negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.



               (b) The Company 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 (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 or bad faith. 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. The
Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.



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



               (d) To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
claim 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 claim shall survive the
satisfaction and discharge of this Indenture.




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               (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(h) hereof occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.



               (f) The Trustee shall comply with the provisions of TIA § 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 hereof;




       (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 Notes 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 hereof, 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



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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 claim provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.





			
	Section 7.09	 	Successor Trustee by Merger, Etc.






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




			
	Section 7.10	 	Eligibility; Disqualification.






               (a) There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.



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




			
	Section 7.11	 	Preferential Collection of Claims Against the Company.






               The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



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 resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof 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.






               (a) Upon the Company’s exercise under Section 8.01 hereof 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 hereof, 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 (“Legal Defeasance”). For this purpose, Legal



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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 hereof and the other Sections of this Indenture
referred to in this clause (a) and
clause (b) below, and to have satisfied all its other obligations under such Notes 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:





       (i) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium and Additional Interest, if any, on such Notes when
such payments are due from the trust referred to in Section 8.05 hereof;




       (ii) the Company’s obligations with respect to Sections 2.07, 2.08, 2.11 and 4.02
hereof;




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




       (iv) this Section 8.03.



               (b) 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 hereof.




			
	Section 8.03	 	Covenant Defeasance.






               Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, each of the Company and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in
Sections 4.03, 4.04 and 4.07 through 4.18 hereof and clauses (ii), (iii), (iv) and (v) of Section
5.01(a) hereof with respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or
act of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that
(unless the Company shall otherwise determine) such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, 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 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the



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conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through (g) shall not constitute Events of Default.





			
	Section 8.04	 	Conditions to Legal or Covenant Defeasance.






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




       (a) 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 shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, or interest and
premium and Additional Interest, if any, on the outstanding Notes on the applicable 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;




       (b) in the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) 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 shall not
recognize income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and shall 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;




       (c) in the case of an election under Section 8.03 hereof, 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 shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and shall 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;




       (d) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit;




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




       (f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect
that assuming no intervening bankruptcy of the Company or any Guarantor between the date of
deposit and the 91st day following the deposit and assuming that no Holder is an
“insider” of the Company under applicable bankruptcy law, after the 91st day



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following the deposit, the trust funds shall not be subject to the effect of Section 547 of
the United States Bankruptcy Code;




       (g) 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 over the other
existing creditors of the Company or with the actual intent of hindering, delaying or
defrauding creditors of the Company;




       (h) if the Notes are to be redeemed prior to their Stated Maturity, the Company must
deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified
redemption date; and




       (i) 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 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including 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 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.



               (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 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be a certification of the opinion referred to in
Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.




			
	Section 8.06	 	Repayment to the Company.






               Subject to applicable laws relating to abandoned property, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of



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the principal
of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be paid to the 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 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 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 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the 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
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, 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 hereof, without the consent of any Holder of Notes, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes:




       (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 by a successor of the Company’s or any Guarantor’s
obligations to Holders of Notes in the case of a merger or consolidation or
sale, assignment, transfer conveyance, lease or other disposition 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;



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




       (vi) to comply with the provisions described under Section 4.18 hereof or otherwise to
add Guarantees with respect to the Notes, or to secure the Notes, or to confirm and evidence
the release, termination or discharge of any Guarantee or Lien with respect to or securing
the Notes when such release, termination or discharge is provided for under this Indenture;




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




       (viii) to conform the text of this Indenture, the Notes or any Note Guarantee to any
provision of the “Description of Notes” in the Offering Memorandum dated May 3, 2006 with
respect to the Notes;




       (ix) to provide that any Indebtedness that becomes an obligation of a Successor or a
Guarantor pursuant to any merger or consolidation (and that is not expressly subordinated in
right of payment to the Notes or the Note Guarantees) is pari passu in right of payment with
the Notes or the applicable Note Guarantee; or




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



               (b) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 13.04 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.




			
	Section 9.02	 	With Consent of Holders of Notes.






               (a) Except as provided below 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 (including Additional Notes, if any) 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 hereof, any existing Default or Event of Default or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including Additional Notes, if any)
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes).



               (b) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture,



94









 







and upon the filing with
the Trustee of evidence reasonably 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 13.04
hereof, the Trustee shall join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or supplemental indenture.



               (c) The consent of the applicable Holders is not necessary under this Indenture to approve the
particular form of any proposed amendment or waiver. It is sufficient if such consent approves the
substance of the proposed amendment or waiver.



               (d) After an amendment, supplement or waiver under this Section 9.02 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 amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including Additional Notes,
if any) may waive compliance in a particular instance by the Company with any provision of this
Indenture, or the Notes. However, without the consent of each Holder affected, an amendment 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;




       (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, or interest or
premium, 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 that impairs the rights of Holders of Notes to receive payments of principal of,
or interest or premium or Additional Interest, if any, on the Notes on or after the due
dates therefor;




       (vii) release any Guarantor that is a Significant Subsidiary from any of its
obligations under its Note Guarantee or 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 of
principal of, or interest or Additional Interest, if any, on, the Notes on or after the due
dates therefor;




       (ix) amend, change or modify the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control in accordance with Section 4.08
hereof after such Change of Control has occurred, including amending, changing or modifying
any definition to the extent relating thereto;




       (x) amend or modify any of the provisions of this Indenture providing for, or the
related definitions to the extent affecting, the subordination of the Notes or any Note
Guarantee in any manner adverse to the Holders; or




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




			
	Section 9.03	 	Compliance with Trust Indenture Act.






               Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental Indenture that complies with the 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 consenting 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 a
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, or the Company, receives
written notice of revocation before the date on which the Company certifies to such Trustee that
the Holders of the requisite principal amount of Notes have consented to such amendment or waiver.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder. After an amendment, supplement or waiver under this Indenture becomes
effective, the Company shall mail to Holders a notice briefly describing such amendment or waiver.
However, the failure to give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of the amendment or waiver.




			
	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.



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	Section 9.06	 	Trustee to Sign Amendments, Etc.






               The Trustee shall sign any amended or supplemental indenture or Note authorized pursuant to
this Article Nine if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental
Indenture or Note until its Board of Directors approves it. In executing any amended or
supplemental indenture or Note, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.



ARTICLE TEN

SUBORDINATION





			
	Section 10.01	 	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 Ten, to the prior payment in full in cash or Cash Equivalents of all
Senior Debt of the Company (whether outstanding on the Issue Date or hereafter created, incurred,
assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt
of the Company.




			
	Section 10.02	 	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
trusts as described in Article Eight or Article Twelve hereof), in the event of any distribution to
creditors of the Company in connection with:




       (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 for the benefit of creditors; or




       (d) any marshaling of the Company’s assets and liabilities.




			
	Section 10.03	 	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 trusts described in Article Eight or Article Twelve hereof) if:



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       (i) a default (a “payment default”) in the payment of principal, premium or interest 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 the case of a nonpayment default on Designated Senior Debt of the Company, the
earlier 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, in each case, 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, interest and premium and Additional Interest,
if any, on the Notes that have come due have been paid in full in cash or Cash Equivalents.



               (d) No nonpayment 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.



               A Payment Blockage Notice may only be given by a representative of holders of Designated
Senior Debt that has been designated by the Company as eligible for the giving of such a notice.




			
	Section 10.04	 	Acceleration of Securities.






               The Company shall promptly notify holders of its Senior Debt if payment of the Notes is
accelerated because of an Event of Default.



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	Section 10.05	 	When Distribution Must Be Paid Over.






               (a) 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 trusts described in Article Eight or Article
Twelve hereof) when:




       (i) the payment is prohibited by this Article Ten; and




       (ii) the Trustee or the Holder, as the case may be, has actual knowledge that the
payment is prohibited (provided that such actual knowledge of the Holder 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 from a Representative
of the holders of Senior Debt of the Company or if there is any payment default on any Designated
Senior Debt of the Company, 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.




               (b) 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 Ten, and no implied covenants or obligations with respect to the holders of Senior Debt of
the Company 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 Senior Debt of the
Company shall be entitled by virtue of this Article Ten, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.




			
	Section 10.06	 	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 Ten, 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 Ten.




			
	Section 10.07	 	Subrogation.






               After all Senior Debt of the Company is paid in full and until the Notes are paid in full,
Holders of Notes will be subrogated (equally and ratably with all other Indebtedness pari passu
with the Notes) to the rights of holders of Senior Debt of the Company to receive distributions
applicable to Senior Debt of the Company to the extent that distributions otherwise payable to the
Holders of Notes have been applied to the payment of Senior Debt of the Company. A distribution
made under this Article Ten 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 10.08 Relative Rights.




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





     (i) impair, as between the Company and the Holders of Notes, the obligation of the
Company, which is absolute and unconditional, to pay principal of and interest on the Notes
in accordance with their terms;




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




     (iii) 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 the Holders
of Notes.



          (b) If the Company fails because of this Article Ten to pay principal of or interest on a Note
on the due date, the failure is still a Default or Event of Default.



Section 10.09 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 10.10 Distribution or Notice to Representative.




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




          (b) Upon any payment or distribution of assets of the Company referred to in this Article Ten,
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 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 Ten.



Section 10.11 Rights of Trustee and Paying Agent.




          (a) Notwithstanding this Article Ten 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 the Notes, unless the Trustee shall have received at its




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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 Ten. Only the Company or a Representative may give the notice. Nothing in
this Article Ten shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.




          (b) 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 10.12 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 Ten, and appoints the Trustee to act as such Holder’s
attorney in fact for any and all such purposes.




ARTICLE ELEVEN

NOTE GUARANTEES



Section 11.01 Guarantee.




          (a) Subject to this Article Eleven, on the Issue Date, each of the Initial Guarantors hereby,
as primary obligor and not merely as surety, jointly and severally, unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this Indenture, the
Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of and
interest on the Notes shall be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful (subject in all cases to any applicable grace period provided herein), and
all other monetary obligations of the Company to the Holders or the Trustee hereunder or thereunder
shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.




          (b) The Guarantors hereby agree (to the fullest extent permitted by law) that their
obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the 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 hereof, each Guarantor hereby waives (to the fullest extent




101









 




permitted by law) 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 covenant (except as otherwise
provided in Section 11.04 hereof) that this Note Guarantee shall not be discharged except by
complete payment in full of the monetary 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 either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, 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 (to the fullest extent permitted
by law) 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 hereof for the purposes of this 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
hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by
the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek
contribution from the Company and any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.



Section 11.02 Limitation on Guarantor Liability.




          Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor under its Note Guarantee shall be
limited to the extent necessary so that they shall not constitute a fraudulent transfer or
conveyance. Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that its Note Guarantee, and the waiver
set forth in Section 11.01(d), are knowingly made in contemplation of such benefits.



Section 11.03 Execution and Delivery of Note Guarantee.




          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantee of each applicable Guarantor set forth in this
Indenture or any supplemental indenture on behalf of such Guarantor. Neither the Company nor any
Guarantor shall be required to make a notation on the Notes to reflect any Note Guarantee.




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Section 11.04 Releases.




          (a) Any Guarantor shall be released and relieved of any obligations under its Note Guarantee
(and Section 4.18(b) hereof shall not apply):





     (A) upon any direct or indirect sale or other disposition (by consolidation, merger or
otherwise) of any Capital Stock of or any interest in a Guarantor in compliance with Section
4.09 hereof, following which such Guarantor is no longer a Restricted Subsidiary of the
Company;




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




     (C) upon the release, discharge or termination of the Guarantee which resulted in the
creation of such Note Guarantee pursuant to Section 4.18 hereof (including the Guarantee of
the Credit Agreement in the case of any Initial Guarantor), except a discharge, release or
termination by or as a result of payment under such Guarantee; or




     (D) upon legal defeasance of the Notes or satisfaction and discharge of this Indenture
pursuant to Article Eight or Twelve hereof, respectively.



          (b) Upon any such occurrence specified in Section 11.04(a) hereof, the Trustee shall execute
documents reasonably required in order to evidence the release, discharge and termination in
respect of such Note Guarantee. Neither the Company nor any Guarantor shall be required to make a
notation on the Notes to reflect any such release, discharge and termination in respect of such
Note Guarantee.




          (c) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under this Indenture as provided in this Article Eleven.



Section 11.05 Subordination of the Note Guarantees.




          (a) Agreement to Subordinate. Each Guarantor agrees, and each Holder by accepting a
Note agrees, that the Indebtedness evidenced by the Note Guarantee 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 such Guarantor (whether outstanding on the
Issue Date or hereafter created, incurred, assumed or guaranteed), and that the subordination is
for the benefit of the holders of Senior Debt of such Guarantor.




          (b) 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 of Notes shall be entitled to receive any payment with respect
to the Note Guarantees (except that Holders of Notes may receive and retain Permitted Junior
Securities and payments made from the trusts as described in




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Article Eight or Article Twelve hereof), in the event of any distribution to creditors of such
Guarantor in connection with:





     (i) any liquidation or dissolution of such Guarantor;




     (ii) any bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Guarantor or its property;




     (iii) any assignment for the benefit of creditors of such Guarantor; or




     (iv) any marshaling of such Guarantor’s assets and liabilities.



          (c) Default on Designated Senior Debt.





     (i) No Guarantor shall make any payment in respect of its Note Guarantee (except in
Permitted Junior Securities or from the trusts described in Article Eight or Article Twelve
hereof) if:




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




     (B) any nonpayment 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
notice of such default (a “Guarantee Payment Blockage Notice”) from a representative
of the holders of such Designated Senior Debt.




     (ii) Payments on the Note Guarantees may and shall be resumed:




     (A) 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




     (B) in the case of a nonpayment default on Designated Senior Debt of such
Guarantor, the earlier of (x) the date on which such default is cured or waived, (y)
179 days after the date on which the applicable Guarantee Payment Blockage Notice is
received and (z) the date the Trustee receives notice from the Representative for
such Designated Senior Debt rescinding the Guarantee Payment Blockage Notice,
unless, in each case, the maturity of such Designated Senior Debt of such Guarantor
has been accelerated.




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




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



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




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




     (v) A Guarantee Payment Blockage Notice may only be given by a representative of
holders of Designated Senior Debt that has been designated by the Company as eligible for
the giving of such a notice.



          (d) Acceleration of Securities.




          Each Guarantor shall promptly notify holders of its Senior Debt if payment of the Notes is
accelerated because of an Event of Default and a demand for payment is made on the Note Guarantee
of such Guarantor pursuant to this Article Eleven.




          (e) When Distribution Must Be Paid Over.





     (i) If the Trustee or any Holder of the Notes receives a payment in respect of the Note
Guarantee of any Guarantor (except in Permitted Junior Securities or from the trusts
described in Article Eight or Article Twelve hereof) when:




     (A) the payment is prohibited by this Section 11.05; and




     (B) the Trustee or the Holder, as the case may be, has actual knowledge that
the payment is prohibited (provided that such actual knowledge of the Holder 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
from a Representative 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.




     (ii) With respect to the holders of Senior Debt of a Guarantor, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically set forth in
this Section 11.05, and no implied covenants or obligations with respect to the holders of
Senior Debt of such Guarantor 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 a
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 Senior Debt of such Guarantor shall be entitled



105









 






by virtue of this Section 11.05, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.



          (f) Notice by 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 the Note
Guarantee of such Guarantor to violate this Section 11.05, but failure to give such notice shall
not affect the subordination of the Note Guarantee of such Guarantor to the Senior Debt of such
Guarantor as provided in this Section 11.05.




          (g) Subrogation.




          After all Senior Debt of a Guarantor is paid in full and until the Notes are paid in full,
Holders of Notes will be subrogated (equally and ratably with all other Indebtedness pari passu
with the Note Guarantee of such Guarantor) to the rights of holders of Senior Debt of such
Guarantee to receive distributions applicable to Senior Debt of such Guarantor to the extent that
distributions otherwise payable to the Holders of Notes have been applied to the payment of Senior
Debt of such Guarantor. A distribution made under this Section 11.05 to holders of Senior Debt of
such Guarantor that otherwise would have been made to Holders of Notes is not, as between such
Guarantor and Holders, a payment by such Guarantor on its Note Guarantee.




          (h) Relative Rights.





     (i) This Section 11.05 defines the relative rights of the Holders of Notes and holders
of Senior Debt of each Guarantor. Nothing in this Indenture shall:




     (A) impair, as between such Guarantor and the Holders of Notes, the obligation
of such Guarantor, which is absolute and unconditional, to pay principal of and
interest on the Note Guarantee of such Guarantor to the extent set forth in this
Article Eleven (other than Section 11.02);




     (B) affect the relative rights of the Holders of Notes and creditors of such
Guarantor other than their rights in relation to holders of Senior Debt of such
Guarantor; 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 such Guarantor to receive distributions and payments
otherwise payable to the Holders of Notes.



          (i) Subordination May Not Be Impaired by a Guarantor.




          No right of any holder of Senior Debt of a Guarantor to enforce the subordination of the
Indebtedness evidenced by the Note Guarantee of such Guarantor shall be impaired by any act or
failure to act by such Guarantor or any Holder or by the failure of such Guarantor or any Holder to
comply with this Indenture.




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          (j) Distribution or Notice to Representative.





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




     (ii) Upon any payment or distribution of assets of a Guarantor referred to in this
Section 11.05, 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 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 Section 11.05.



          (k) Rights of Trustee and Paying Agent.





     (i) Notwithstanding this Section 11.05 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 the Note Guarantees, 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 Note Guarantees to violate this Section 11.05. Only a Subsidiary Guarantor
or a Representative may give the notice. Nothing in this Section 11.05 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.




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



          (l) 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 Section 11.05, and appoints the Trustee to act as such Holder’s
attorney in fact for any and all such purposes.




ARTICLE TWELVE

SATISFACTION AND DISCHARGE



Section 12.01 Satisfaction and Discharge.




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




107









 






     (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 mailing of a notice of redemption or
otherwise or shall 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
shall 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 and Additional Interest, if any, and accrued
interest to the date of maturity or redemption;




     (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 shall not result
in a breach or violation of, or constitute a default under, any other material 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 then 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.



          (b) 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.




          (c) 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 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 thereof that would then be
required to be deposited to effect a satisfaction and discharge under this Article Eleven.



Section 12.02 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.




          Subject to Section 12.03 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 12.02, the “Trustee”) pursuant to Section 12.01




108









 




hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the 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 shall be
segregated from other funds except to the extent required by law.



Section 12.03 Repayment to the Company.




          Subject to applicable laws relating to abandoned property, 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 and Additional Interest, if any, or interest on any Note and remaining unclaimed for
two years after such principal, and premium and Additional Interest, if any, or interest has become
due and payable shall be paid to the 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 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.




ARTICLE THIRTEEN

MISCELLANEOUS



Section 13.01 Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA § 318(c), the imposed duties shall control.



Section 13.02 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 or any Guarantor:



iPayment, Inc.

40 Burton Hills, Suite 415

Nashville, Tennessee 37215

Attention: Clay Whitson, Chief Financial Officer

Facsimile No.: 615-665-8434




109









 




With a copy to:



iPayment, Inc.

40 Burton Hills, Suite 415

Nashville, Tennessee 37215

Attention: Afshin Yazdian, General Counsel

Facsimile: 615-665-8434



With courtesy copies to:



White & Case LLP

1155 Avenue of the Americas

New York, New York 10036

Telecopier: 212-819-8200

Attention: Mark Mandel



Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Facsimile: 212-909-6836

Attention: David Brittenham



If to the Trustee:



Wells Fargo Bank, National Association

213 Court Street, Suite 703

Middletown, Connecticut 06457

Facsimile: 860-704-6219

Attention: Joseph P. O’Donnell




          (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; five 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 § 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) 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.




110









 





          (f) 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 13.03 Communication by Holders of Notes with Other Holders of Notes.




          Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to its rights
under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).



Section 13.04 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:





     (a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.


Section 13.05 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 § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:





     (a) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and




     (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



111









 




Section 13.06 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 13.07 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 these individuals from this liability. The waiver and release are part
of the consideration for issuance of the Notes.



Section 13.08 Governing Law.




          THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT SUCH PRINCIPLES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



Section 13.09 Consent to Jurisdiction.




          Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby 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 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 (to the fullest extent permitted by applicable law) 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 13.10 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 13.11 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




112









 




agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise
provided in Section 11.04 hereof.



Section 13.12 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 (to
the fullest extent permitted by applicable law) in any way be affected or impaired thereby.



Section 13.13 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 13.14 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 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
13.14.




          (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 13.14, 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 hereof.




          (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 resolution of its Board of Directors, 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.




113









 




Notwithstanding TIA § 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 hereof 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 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 13.15 Benefit of Indenture.




          Nothing, in this Indenture or in the Notes, 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 13.16 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.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





114










 







SIGNATURES




	 	 	 	 	 	 	 
	iPAYMENT, INC.	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Clay M. Whitson	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Clay M. Whitson	 	 
	 

	 	Title:
	 	Chief Financial Officer and Treasurer	 	 
	 
	 	 	 	 	 	 
	GUARANTORS:	 	 
	 
	 	 	 	 	 	 
	iPayment of California, LLC	 	 
	1st National Processing, Inc.	 	 
	E-Commerce Exchange, Inc.	 	 
	Online Data Corp.	 	 
	iPayment of Maine, Inc.	 	 
	Cardsync Processing, Inc.	 	 
	Quad City Acquisition Sub, Inc.	 	 
	Cardpayment Solutions, L.L.C.	 	 
	iPayment Acquisition Sub LLC	 	 
	TS Acquisition Sub LLC	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Clay M. Whitson	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Clay M. Whitson	 	 
	 

	 	Title:
	 	Chief Financial Officer and/or Treasurer	 	 
	 
	 	 	 	 	 	 
	iPayment ICE Holdings, Inc.	 	 
	PCS Acquisition Sub, LLC	 	 
	NPMG Acquisition Sub, LLC	 	 
	iPayment Central Holdings, Inc.	 	 
	Online Data Corp.	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Gregory S. Daily	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Gregory S. Daily
	 	 
	 

	 	Title:
	 	Chief Executive Officer and/or President	 	 






115









 






	 	 	 	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	as Trustee	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/JosephP.O’Donnell	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Joseph P. O’Donnell	 	 
	 

	 	Title:
	 	Vice President	 	 







116









 








EXHIBIT A




[Face of Note]




CUSIP [          ]




			
	 	 	 
	No.                     
	 	**$[          ]**






[NAME OF COMPANY]




93/4% Senior Subordinated Note due 2014




Issue Date: [          ]




     [NAME OF COMPANY] (the “Company”, which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to [NAME], or its registered assigns,
the principal sum of [     ] DOLLARS ($[               ]) on May 15, 2014.


Interest Payment Dates: May 15 and November 15, commencing November 15, 2006.



Record Dates: May 1 and November 1.




     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.



A-1









 





     IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.



	 	 	 	 	 
	 	[NAME OF COMPANY]

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	Title:  	Name: 	 
	 




A-2









 




This is one of the 93/4% Senior Subordinated Notes due 2014 described in the within-mentioned
Indenture.




Dated: [          ]




	 	 	 	 	 
	[NAME OF TRUSTEE], as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 	 
	 	 	Authorized Signatory	 	 







A-3










 







[Reverse Side of Note]




[NAME OF COMPANY]




93/4% Senior Subordinated Note due 2014



[Insert the Regulation S Temporary Global Note legend, if applicable, pursuant to the provisions of
the Indenture].



[Insert the Global Note Legend, if applicable, pursuant to the provisions of the Indenture].



[Insert the Private Placement legend, if applicable, pursuant to the provisions of the Indenture].




          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 93/4%
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 May 15 and November
15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day
(each an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance; provided
that 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. The first Interest Payment
Date shall be November 15, 2006. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at the rate specified above, 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 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 May 1 or November 1 next 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. For so long as the Notes are
held in one or more Global Notes, the Company shall pay all principal, interest and premium and
Additional Interest, if any, in respect of the Notes represented by Global Notes by wire transfer
of immediately available funds to the account specified by the Holder of the relevant Global Note
(so long as such wire transfer be so made). Otherwise, if a Holder has given wire transfer
instructions to the Company at least 30 days prior to the applicable payment date, the Company
shall pay all principal, interest and premium and Additional Interest, if any, on that Holder’s
Notes in accordance with those instructions (so long as such wire transfer may be so made). All
other payments on Notes shall be made at the office




A-4









 




or agency of the Paying Agent and Registrar 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, Wells Fargo Bank, National Association, 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.




          4. Indenture. The Company issued the Notes under an Indenture dated as of May 10, 2006 (the
“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 TIA. 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 (to the fullest extent permitted
by law) 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) At any time prior to May 15, 2009, 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 109.750% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date, with the net cash proceeds of one or
more Equity Offerings (or an amount of funds equal thereto) at least equal to the principal amount
of the Notes so redeemed; provided that:





     (i) 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; and




     (ii) the redemption must occur within 90 days of the date of the closing of such Equity
Offering.



          (b) At any time prior to May 15, 2010, the Company may, at its option, redeem all or 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.




          (c) Except pursuant to clauses (a) and (b) of this paragraph 5, the Notes shall not be
redeemable at the Company’s option prior to May 15, 2010.




          (d) On or after May 15, 2010, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ prior notice at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest




A-5









 




and Additional Interest, if any, thereon, to the applicable redemption date, if redeemed
during the twelve-month period beginning on May 15 of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage	 
	2010
	 	 	104.875	%
	2011
	 	 	102.438	%
	2012 and thereafter
	 	 	100.000	%






          6. Mandatory Redemption. The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.




          7. Selection and Notice of Redemption. Any redemption pursuant to paragraph 5 above shall be
made pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.




          8. Repurchase at Option of Holder.




          (e) Upon the occurrence of a Change of Control, 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 thereof)
of such Holder’s Notes on the terms set forth in the Indenture at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date of repurchase; provided that the Company shall not be
obligated to repurchase Notes in the event that it has exercised its right to redeem all of the
Notes described in paragraph 5 above.




          (f) The Company is, subject to certain conditions, obligated to make an offer to repurchase
Notes at 100% of the principal amount thereof plus accrued and unpaid interest and Additional
Interest, if any, to the date of repurchase, which shall be payable in cash, with certain net cash
proceeds of certain sales or other dispositions of assets in accordance with the terms of the
Indenture, all as more particularly described in the Indenture.




          9. Denominations, Transfer and Exchange. The Notes are in registered form, without coupons,
in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. As set forth more fully in the
Indenture, (a) 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 required by law or permitted by the Indenture; (b) the Company need not exchange or register
the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part; and (c) the Company need not transfer or exchange any
Note for a period of 15 days prior to a selection of Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.




A-6









 





          10. Persons Deemed Owners. The registered Holder of a Note shall be treated as its owner for
all purposes.




          11. 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 and Additional Notes, if any, voting as a single
class (including, without limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the 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 of the Notes then outstanding and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes). The Indenture may also be amended without the consent of any
Holders as provided in the Indenture.




          12. Defaults and Remedies. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company or any 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 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 the Agent under the Credit Agreement of written notice of the acceleration of the
Notes. Holders of the Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. As more particularly provided in the Indenture, (a) subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in
its exercise of any trust or power; (b) the Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest or Additional Interest, if any) if it determines that withholding
notice is in their interest; and (c) the 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 under the Indenture except a
continuing Default or Event of Default in the payment of interest or Additional Interest, if any,
on, or the principal of, the Notes.




          13. Trustee Dealings with the Company. The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.




          14. 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




A-7









 




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 these
individuals from this liability. The waiver and release are part of the consideration for issuance
of the Notes.




          15. Authentication. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.




          16. 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 dated as of May 10, 2006, among the Company, the Guarantors and the parties named
on the signature pages thereof or, in the case of Additional Notes, the Holders of Additional Notes
shall have the rights set forth in one or more registration rights agreements, if any, between the
Company, the Guarantors and the other parties thereto, relating to rights given by the Company and
the Guarantors to the purchasers of Additional Notes (the “Registration Rights Agreement”).




          17. 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 the 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.




          18. Subordination. Payment of principal, interest and premium and Additional Interest, if
any, on the Notes is subordinated to the prior payment of Senior Debt of the Company and any
Guarantor on the terms provided in the Indenture.




          19. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE, THIS NOTE AND THE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT SUCH PRINCIPLES ARE NOT MANDATORILY APPLICABLE BY STATUTE
AND THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




          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:



[Name of Company]

[Address]



with copies to:




A-8









 





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).




A-9









 





OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 or
4.09 of the Indenture, check the box below:




o




          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.08 or 4.09 of the Indenture, state the amount you elect to have purchased:




$           




	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Your Signature:	 	 
	 

	 	 	 	 	 	 
	 

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

	 	 	 	Tax Identification No.:	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Signature Guarantee*:

	 	 	 	 
	 

	 	 	 	 




* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-10









 





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 at	 	 	 	 
	 	 	Amount of Decrease in	 	 	Amount of Increase in	 	 	Maturity	 	 	Signature of	 
	 	 	Principal Amount at	 	 	Principal Amount at	 	 	of this Global Note	 	 	Authorized Officer	 
	 	 	Maturity	 	 	Maturity	 	 	Following such	 	 	of Trustee or	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	decrease (or increase)	 	 	Note Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





A-11









 





EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




[Name of Company]

[Address]




[Name of Company]

[Address]




          Re: 93/4% Senior Subordinated Notes due 2014




          Reference is hereby made to the Indenture, dated as of May 10, 2006 (the “Indenture”), among
iPayment, Inc., a Delaware corporation (the “Company”), the Guarantors and Wells Fargo Bank,
National 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 at maturity of $___in
such Note[s] or interests (the “Transfer”), to ___(the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:




[CHECK ALL THAT APPLY]




          1. o Check if Transferee shall take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Restricted Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or Restricted 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 Restricted Definitive Note shall be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.




          2. o Check if Transferee shall take delivery of a beneficial interest in the Regulation S
Temporary Global Note, the Regulation S Permanent Global Note or a Definitive Note pursuant to
Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and either (x) at the time the
buy order was originated, the Transferee was outside the United States or such




B-1









 



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(a)
or Rule 904(a) of Regulation S under the Securities Act, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is
not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S
Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.




          3. o Check and complete if Transferee shall take delivery of a beneficial interest in a
Restricted Global Note or a Restricted Definitive Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with
the transfer restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):





     (a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and the requirements of the exemption claimed, which certification is
supported by an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification);



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or




          (c) o such Transfer is being effected pursuant to an effective registration statement under
the Securities Act and in compliance with the prospectus delivery requirements of the Securities
Act.





     4. o Check if Transferee shall take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.



          (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall no longer be




B-2









 




subject to the restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on the Restricted Definitive Notes and in the Indenture.




          (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note shall no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on the Restricted Definitive Notes and in the Indenture.




          (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall 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.




          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.




	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	[Insert Name of Transferor]

	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:

Title:
	Dated:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





B-3









 





ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:






[CHECK ONE OF (A) OR (B)]





	 	(A)	 	o a beneficial interest in the:







	 	(i)	 	o 144A Global Note (CUSIP [ ]); or

	 
	 	(ii)	 	o Regulation S Global Note (CUSIP [ ]); or







	 	(B)	 	o a Restricted Definitive Note.







	2.	 	After the Transfer the Transferee will hold:






[CHECK ONE]





	 	(A)	 	o a beneficial interest in the:







	 	(i)	 	o 144A Global Note (CUSIP [ ]); or

	 
	 	(ii)	 	o Regulation S Global Note (CUSIP [ ]); or

	 
	 	(iii)	 	o Unrestricted Global Note (CUSIP [ ]); or







	 	(B)	 	o a Restricted Definitive Note; or

	 
	 	(C)	 	o an Unrestricted Definitive Note,





in accordance with the terms of the Indenture.




B-4









 





EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




[Name of Company]

[Address]




[Name of Company]

[Address]




          Re: 93/4% Senior Subordinated Notes due 2014




          Reference is hereby made to the Indenture, dated as of May 10, 2006 (the “Indenture”), among
iPayment, Inc., a Delaware corporation (the “Company”), the Guarantors and Wells Fargo Bank,
National 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 at maturity of $___in such
Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies
that:




          1. o 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.




          (g) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount at maturity, 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.




          (h) o Check if Exchange is from beneficial interest in a Restricted Global Note to an
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive




C-1









 




Note is being acquired in compliance with any applicable blue sky securities laws of any state
of the United States.




          (i) o Check if Exchange is from a 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.




          (j) o Check if Exchange is from a Restricted Definitive Note to an 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. o Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes.





     (A) o Check if Exchange is from beneficial interest in a Restricted Global Note to a
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 shall continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and
the Securities Act.




     (B) o Check if Exchange is from a Restricted Definitive Note to beneficial interest in
a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted
Definitive Note for a beneficial interest in the [CHECK ONE] ? 144A Global Note, ?
Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer and (ii)
such Exchange has been 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



C-2









 






any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued shall 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.




	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	[Insert Name of Transferor]

	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:

Title:
	Dated:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





C-3









 





EXHIBIT D




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




          Supplemental Indenture (this “Supplemental Indenture”), dated as of ___, among
___(the “Guaranteeing Subsidiary”), a subsidiary of iPayment, Inc. (or its
permitted successor), a Delaware corporation (the “Company”), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and Wells Fargo Bank, National Association, as trustee
under the Indenture referred to below (the “Trustee”).




W I T N E S S E T H




          WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of May 10, 2006 providing for the issuance of $205,000,000 of 93/4% Senior
Subordinated Notes due 2014 (the “Notes”);




          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the
Notes and the Indenture on the terms and conditions set forth herein (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 Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:




          1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.




          2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture
including but not limited to Article 11 thereof.




          3. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.




          4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS




D-1









 




SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT SUCH PRINCIPLES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




          5. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.




          6. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.




          7. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore
or hereafter authenticated and delivered shall be bound hereby.




          8. 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.




D-2









 





          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.




Dated:                          ,      




	 	 	 	 	 
	 	 	[GUARANTEEING SUBSIDIARY]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	[EXISTING GUARANTORS]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	[NAME OF COMPANY]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	[NAME OF TRUSTEE]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:







D-3