Exhibit 4.1


 


EXECUTION COPY


 


INTERVAL ACQUISITION CORP.


 


9.5% SENIOR NOTES DUE 2016


 


INDENTURE


 


Dated as of August 19, 2008


 


THE BANK OF NEW YORK MELLON

as

Trustee


 

















 


CROSS-REFERENCE TABLE


 


	
  TIA

  	
   

  	
  Indenture

  
	
  Section

  	
   

  	
  Section

  
	
  303

  	
   

  	
  1.03

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.06; 7.07

  
	
  (c)

  	
   

  	
  7.06; 11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03(a); 11.05

  
	
  (4)

  	
   

  	
  4.04; 11.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  11.04; 11.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01(b); 7.02

  
	
  (b)

  	
   

  	
  7.05; 11.02

  
	
  (c)

  	
   

  	
  7.01(a)

  
	
  (d)

  	
   

  	
  7.01(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.13

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  11.01

  
	
  (c)

  	
   

  	
  11.01

  



 






N.A. means Not Applicable.


Note:  This Cross-Reference Table
shall not, for any purposes, be deemed to be part hereof.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS AND INCORPORATION BY
  REFERENCE

  
	
   

  
	
  SECTION 1.01.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
   

  	
  Other Definitions

  	
   

  	
  22

  
	
  SECTION 1.03.

  	
   

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  23

  
	
  SECTION 1.04.

  	
   

  	
  Rules of Construction

  	
   

  	
  23

  
	
  SECTION 1.05.

  	
   

  	
  Acts of Holders; Record Dates

  	
   

  	
  24

  
	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE NOTES

  
	
   

  
	
  SECTION 2.01.

  	
   

  	
  Form and Dating

  	
   

  	
  24

  
	
  SECTION 2.02.

  	
   

  	
  Form of Execution and Authentication

  	
   

  	
  26

  
	
  SECTION 2.03.

  	
   

  	
  Registrar and Paying Agent

  	
   

  	
  27

  
	
  SECTION 2.04.

  	
   

  	
  Paying Agent To Hold Money in Trust

  	
   

  	
  28

  
	
  SECTION 2.05.

  	
   

  	
  Lists of Holders of the Notes

  	
   

  	
  28

  
	
  SECTION 2.06.

  	
   

  	
  Transfer and Exchange

  	
   

  	
  28

  
	
  SECTION 2.07.

  	
   

  	
  Replacement Notes

  	
   

  	
  38

  
	
  SECTION 2.08.

  	
   

  	
  Outstanding Notes

  	
   

  	
  38

  
	
  SECTION 2.09.

  	
   

  	
  Treasury Notes

  	
   

  	
  39

  
	
  SECTION 2.10.

  	
   

  	
  Temporary Notes

  	
   

  	
  39

  
	
  SECTION 2.11.

  	
   

  	
  Cancellation

  	
   

  	
  39

  
	
  SECTION 2.12.

  	
   

  	
  Defaulted Interest

  	
   

  	
  40

  
	
  SECTION 2.13.

  	
   

  	
  Record Date

  	
   

  	
  40

  
	
  SECTION 2.14.

  	
   

  	
  CUSIP Number

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  
	
  REDEMPTION

  
	
   

  
	
  SECTION 3.01.

  	
   

  	
  Notices to Trustee

  	
   

  	
  40

  
	
  SECTION 3.02.

  	
   

  	
  Selection of Notes To Be Redeemed

  	
   

  	
  41

  
	
  SECTION 3.03.

  	
   

  	
  Notice of Redemption

  	
   

  	
  41

  
	
  SECTION 3.04.

  	
   

  	
  Effect of Notice of Redemption

  	
   

  	
  42

  
	
  SECTION 3.05.

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  42

  
	
  SECTION 3.06.

  	
   

  	
  Notes Redeemed in Part

  	
   

  	
  42

  
	
  SECTION 3.07.

  	
   

  	
  Optional Redemption

  	
   

  	
  42

  
	
  SECTION 3.08.

  	
   

  	
  Excess Proceeds Offer

  	
   

  	
  43

  



 


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  Page

  
	
   

  
	
  ARTICLE 4

  
	
   

  
	
  COVENANTS

  
	
   

  
	
  SECTION 4.01.

  	
   

  	
  Payment of Notes

  	
   

  	
  45

  
	
  SECTION 4.02.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  45

  
	
  SECTION 4.03.

  	
   

  	
  Reports

  	
   

  	
  46

  
	
  SECTION 4.04.

  	
   

  	
  Compliance Certificate

  	
   

  	
  46

  
	
  SECTION 4.05.

  	
   

  	
  Taxes

  	
   

  	
  47

  
	
  SECTION 4.06.

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  	
  47

  
	
  SECTION 4.07.

  	
   

  	
  Limitation on Restricted Payments

  	
   

  	
  47

  
	
  SECTION 4.08.

  	
   

  	
  Limitation on Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
   

  	
  50

  
	
  SECTION 4.09.

  	
   

  	
  Limitation on Incurrence of Indebtedness

  	
   

  	
  52

  
	
  SECTION 4.10.

  	
   

  	
  Limitation on Asset Sales

  	
   

  	
  56

  
	
  SECTION 4.11.

  	
   

  	
  Limitation on Transactions with Affiliates

  	
   

  	
  57

  
	
  SECTION 4.12.

  	
   

  	
  Limitation on Liens

  	
   

  	
  58

  
	
  SECTION 4.13.

  	
   

  	
  Additional Subsidiary Guarantees

  	
   

  	
  59

  
	
  SECTION 4.14.

  	
   

  	
  Organizational Existence

  	
   

  	
  59

  
	
  SECTION 4.15.

  	
   

  	
  Change of Control

  	
   

  	
  59

  
	
  SECTION 4.16.

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  60

  
	
  SECTION 4.17.

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.18.

  	
   

  	
  Payments for Consent

  	
   

  	
  61

  
	
  SECTION 4.19.

  	
   

  	
  Suspension of Covenants

  	
   

  	
  61

  
	
   

  
	
  ARTICLE 5

  
	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
   

  	
  Merger, Consolidation or Sale of Assets

  	
   

  	
  62

  
	
  SECTION 5.02.

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  63

  
	
   

  
	
  ARTICLE 6

  
	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
   

  	
  Events of Default

  	
   

  	
  63

  
	
  SECTION 6.02.

  	
   

  	
  Acceleration

  	
   

  	
  65

  
	
  SECTION 6.03.

  	
   

  	
  Other Remedies

  	
   

  	
  65

  
	
  SECTION 6.04.

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  65

  
	
  SECTION 6.05.

  	
   

  	
  Control by Majority

  	
   

  	
  66

  
	
  SECTION 6.06.

  	
   

  	
  Limitation on Suits

  	
   

  	
  66

  
	
  SECTION 6.07.

  	
   

  	
  Rights of Holders of Notes To Receive Payment

  	
   

  	
  66

  
	
  SECTION 6.08.

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  67

  
	
  SECTION 6.09.

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  67

  
	
  SECTION 6.10.

  	
   

  	
  Priorities

  	
   

  	
  67

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.11.

  	
   

  	
  Undertaking for Costs

  	
   

  	
  68

  
	
   

  
	
  ARTICLE 7

  
	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
   

  	
  Duties of Trustee

  	
   

  	
  68

  
	
  SECTION 7.02.

  	
   

  	
  Rights of Trustee

  	
   

  	
  69

  
	
  SECTION 7.03.

  	
   

  	
  Individual Rights of Trustee

  	
   

  	
  70

  
	
  SECTION 7.04.

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  70

  
	
  SECTION 7.05.

  	
   

  	
  Notice of Defaults

  	
   

  	
  71

  
	
  SECTION 7.06.

  	
   

  	
  Reports by Trustee to Holders of the Notes

  	
   

  	
  71

  
	
  SECTION 7.07.

  	
   

  	
  Compensation and Indemnity

  	
   

  	
  71

  
	
  SECTION 7.08.

  	
   

  	
  Replacement of Trustee

  	
   

  	
  72

  
	
  SECTION 7.09.

  	
   

  	
  Successor Trustee by Merger, Etc.

  	
   

  	
  73

  
	
  SECTION 7.10.

  	
   

  	
  Eligibility; Disqualification

  	
   

  	
  73

  
	
  SECTION 7.11.

  	
   

  	
  Preferential Collection of Claims Against Issuer

  	
   

  	
  73

  
	
   

  
	
  ARTICLE 8

  
	
   

  
	
  DISCHARGE OF INDENTURE;
  DEFEASANCE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
   

  	
  Termination of the Issuer’s Obligations

  	
   

  	
  74

  
	
  SECTION 8.02.

  	
   

  	
  Option To Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  74

  
	
  SECTION 8.03.

  	
   

  	
  Legal Defeasance and Covenant Discharge

  	
   

  	
  75

  
	
  SECTION 8.04.

  	
   

  	
  Covenant Defeasance

  	
   

  	
  75

  
	
  SECTION 8.05.

  	
   

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  76

  
	
  SECTION 8.06.

  	
   

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

  	
   

  	
  77

  
	
  SECTION 8.07.

  	
   

  	
  Repayment to Issuer

  	
   

  	
  77

  
	
  SECTION 8.08.

  	
   

  	
  Reinstatement

  	
   

  	
  77

  
	
   

  
	
  ARTICLE 9

  
	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
   

  	
  Without Consent of Holders of Notes

  	
   

  	
  78

  
	
  SECTION 9.02.

  	
   

  	
  With Consent of Holders of Notes

  	
   

  	
  79

  
	
  SECTION 9.03.

  	
   

  	
  Compliance with Trust Indenture Act

  	
   

  	
  80

  
	
  SECTION 9.04.

  	
   

  	
  Revocation and Effect of Consents

  	
   

  	
  80

  
	
  SECTION 9.05.

  	
   

  	
  Notation on or Exchange of Notes

  	
   

  	
  81

  
	
  SECTION 9.06.

  	
   

  	
  Trustee To Sign Amendments, Etc.

  	
   

  	
  81

  



 


iii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
   

  	
  Guarantee

  	
   

  	
  81

  
	
  SECTION 10.02.

  	
   

  	
  Execution and Delivery of Guarantees

  	
   

  	
  83

  
	
  SECTION 10.03.

  	
   

  	
  Merger, Consolidation or Sale of Assets of Guarantors

  	
   

  	
  83

  
	
  SECTION 10.04.

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  84

  
	
  SECTION 10.05.

  	
   

  	
  Releases from Guarantees

  	
   

  	
  84

  
	
   

  
	
  ARTICLE 11

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
   

  	
  Trust Indenture Act Controls

  	
   

  	
  85

  
	
  SECTION 11.02.

  	
   

  	
  Notices

  	
   

  	
  85

  
	
  SECTION 11.03.

  	
   

  	
  Communication by Holders of Notes with Other Holders of Notes

  	
   

  	
  86

  
	
  SECTION 11.04.

  	
   

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  86

  
	
  SECTION 11.05.

  	
   

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  86

  
	
  SECTION 11.06.

  	
   

  	
  Rules by Trustee and Agents

  	
   

  	
  87

  
	
  SECTION 11.07.

  	
   

  	
  No Personal Liability of Directors, Owners, Employees, Incorporators
  and Stockholders

  	
   

  	
  87

  
	
  SECTION 11.08.

  	
   

  	
  Governing Law

  	
   

  	
  87

  
	
  SECTION 11.09.

  	
   

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  87

  
	
  SECTION 11.10.

  	
   

  	
  Successors

  	
   

  	
  87

  
	
  SECTION 11.11.

  	
   

  	
  Severability

  	
   

  	
  88

  
	
  SECTION 11.12.

  	
   

  	
  Counterpart Originals

  	
   

  	
  88

  
	
  SECTION 11.13.

  	
   

  	
  Table of Contents, Headings, Etc.

  	
   

  	
  88

  
	
  SECTION 11.14.

  	
   

  	
  Force Majeure

  	
   

  	
  88

  
	
  SECTION 11.15.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  FORM OF NOTE

  	
   

  	
   

  
	
  EXHIBIT B

  	
   

  	
  FORM OF GUARANTEE

  	
   

  	
   

  
	
  EXHIBIT C

  	
   

  	
  FORM OF CERTIFICATE OF TRANSFER

  	
   

  	
   

  
	
  EXHIBIT D

  	
   

  	
  FORM OF CERTIFICATE OF EXCHANGE

  	
   

  	
   

  
							



 


iv

















 


INDENTURE dated as of August 19, 2008 by
and among Interval Acquisition Corp. (the “Issuer”), a
Delaware corporation, the Guarantors (as hereinafter defined) and The Bank of
New York Mellon, a New York banking corporation, as trustee (the “Trustee”).


 


The Issuer, the Guarantors and the Trustee
agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the Issuer’s 9.5% Senior Notes due 2016.


 


RECITALS


 


The Issuer and the Guarantors have duly
authorized the execution and delivery hereof to provide for the issuance of the
Notes and the Guarantees.


 


All things necessary (i) to make the
Notes, when executed by the Issuer and authenticated and delivered hereunder
and duly issued by the Issuer and delivered hereunder, the valid and binding
obligations of the Issuer, (ii) to make the Guarantees when executed by
the Guarantors and delivered hereunder the valid and binding obligations of the
Guarantors, and (iii) to make this Indenture a valid and legally binding
agreement of the Issuer and the Guarantors, all in accordance with their
respective terms, have been done.


 


For and in consideration of the premises and
the purchase of the Notes by the Holders thereof, it is mutually agreed as
follows for the equal and ratable benefit of the Holders of the Notes.


 


ARTICLE 1


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION 1.01.                                                       Definitions.


 


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


 


“Acquired
Debt” means, with respect to any specified Person, Indebtedness of
any other Person existing at the time such other Person merges with or into or
becomes a Subsidiary of such specified Person, or Indebtedness incurred by such
Person in connection with the acquisition of assets.


 


“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person.  For purposes of
this definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with respect to 


 

















 


any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.


 


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


 


“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 that apply
to such transfer or exchange.


 


“Asset
Acquisition” means (1) an Investment by the Issuer or any
Restricted Subsidiary of the Issuer in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Issuer or any Restricted
Subsidiary of the Issuer, or shall be merged with or into the Issuer or any
Restricted Subsidiary of the Issuer, or (2) the acquisition by the Issuer
or any Restricted Subsidiary of the Issuer of the assets of any Person (other
than a Restricted Subsidiary of the Issuer) which constitute all or
substantially all of the assets of such Person or comprises any division or
line of business of such Person.


 


“Asset
Sale” means any sale, issuance, conveyance, transfer, lease,
assignment or other disposition by the Issuer or any Restricted Subsidiary to
any Person other than the Issuer or any Restricted Subsidiary (including by
means of a merger or consolidation or through the issuance or sale of Equity
Interests of Restricted Subsidiaries (other than Preferred Equity Interests of
Restricted Subsidiaries issued in compliance with Section 4.09)
(collectively, for purposes of this definition, a “transfer”), in one transaction or a series of related
transactions, of any assets of the Issuer or any of its Restricted Subsidiaries
(other than sales of inventory and other transfers in the ordinary course of
business). For purposes of this definition, the term “Asset Sale” shall not
include:


 


(a)  transfers of cash or Cash Equivalents;


 


(b)  transfers of assets of the Issuer (including Equity Interests) that
are governed by, and made in accordance with, the first paragraph of Section 5.01;


 


(c)  Permitted Investments and Restricted Payments permitted under Section 4.07;


 


(d)  the creation of or realization on any Lien permitted under this
Indenture;


 


(e)  transfers of damaged, worn-out or obsolete equipment or assets
that, in the Issuer’s reasonable judgment, are no longer used or useful in the
business of the Issuer or its Restricted Subsidiaries;


 


(f)   sales or grants of licenses or sublicenses to use the patents,
trade secrets, know-how and other intellectual property, and licenses, leases
or subleases of other assets, of the Issuer or any Restricted Subsidiary to the
extent not materially interfering with the business of Issuer and the
Restricted Subsidiaries;


 


2

















 


(g)  any transfer or series of related transfers that, but for this
clause, would be Asset Sales, if the aggregate fair market value of the assets
transferred in such transaction or series of related transactions does not
exceed $5.0 million; and


 


(h)  the Spin-Off and transfers of assets to Affiliates of the Issuer
prior to the Spin-Off pursuant to the Transactions that are consistent with the
pro forma financial information in, or
otherwise described in, or contemplated by, the Incorporated OM Sections.


 


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


 


“Board of
Directors” means:


 


(1)  with respect to a corporation, the board of directors of the
corporation or, except in the context of the definition of “Change of Control,”
a duly authorized committee thereof;


 


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


 


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


 


“Broker Dealer”
means any broker or dealer registered under the Exchange Act.


 


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


 


“Capital
Lease Obligations” means, as to any Person, the obligations of such
Person under a lease that are required to be classified and accounted for as
capital lease obligations under GAAP and, for purposes of this definition, the
amount of such obligations at the time any determination thereof is to be made
shall be the amount of the liability in respect of a capital lease that would
at such time be so required to be capitalized on a balance sheet in accordance
with GAAP.


 


“Capital
Stock” means any and all shares, interests, participations, rights
or other equivalents, however designated, of corporate stock or partnership or
membership interests, whether common or preferred.


 


“Cash
Equivalents” means:


 


(a)  United States dollars;


 


(b)  Government Securities having maturities of not more than twelve
(12) months from the date of acquisition;


 


(c)  certificates of deposit, time deposits and eurodollar time deposits
with maturities of one year or less from the date of acquisition, bankers’
acceptances with 


 


3

















 


maturities not exceeding one year and
overnight bank deposits, in each case with any commercial bank having capital
and surplus in excess of $500.0 million;


 


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


 


(e)  commercial paper issued by any issuer bearing at least a “2” rating for any short-term rating
provided by Moody’s or S&P and maturing within two hundred seventy
(270) days of the date of acquisition;


 


(f)   variable or fixed rate notes issued by any issuer rated at least
AA by S&P (or the equivalent thereof) or at least Aa2 by Moody’s (or the
equivalent thereof) and maturing within one (1) year of the date of
acquisition;


 


(g)  money market funds or programs (x) offered by any commercial
or investment bank having capital and surplus in excess of $500.0 million at
least 95% of the assets of which constitute Cash Equivalents of the kinds
described in clauses (a) through (f) of this definition, (y) offered
by any other nationally recognized financial institution (i) at least 95%
of the assets of which constitute Cash Equivalents of the kinds described in
clauses (a) through (f), (ii) are rated AAA and (iii) the
fund is at least $4 billion or (z) registered under the Investment
Company Act of 1940, as amended, that are administered by reputable financial
institutions having capital and surplus of at least $500.0 million and the
portfolios of which are limited to investments of the character described in
the foregoing subclauses hereof; and


 


(h)  in the case of any Foreign Subsidiary, high quality short-term
investments which are customarily used for cash management purposes in any
country in which such Foreign Subsidiary operates.


 


“Change of
Control” means the occurrence of one or more of the following
events:


 


(a)  the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Exchange Act
and the rules of the Commission thereunder as in effect on the Issue Date)
other than one or more Permitted Holders of Equity Interests representing more
than 50% (on a fully diluted basis) of the total voting power represented by
the issued and outstanding Equity Interests of the Issuer then entitled to vote
in the election of the Board of Directors of the Issuer generally;


 


(b)  during any period of twelve (12) consecutive months, (i) as
long as the Issuer remains a Subsidiary of Parent, a majority of the members of
the Board of Directors of Parent ceases to be composed of individuals who were
either (1) nominated by the Board of Directors of Parent with the
affirmative vote of a majority of the members of said Board of Directors at the
time of such nomination or election or (2) appointed by directors so
nominated or elected or appointed by Permitted Holders; or (ii) if the
Issuer ceases to be a Subsidiary of Parent, a majority of the members of the
Board of Directors of the Issuer ceases to be composed of individuals who were
either (1) nominated by the 


 


4

















 


Board of Directors of the Issuer with the
affirmative vote of a majority of the members of said Board of Directors at the
time of such nomination or election or (2) appointed by directors so
nominated or elected or appointed by Permitted Holders; or


 


(c)  there shall be consummated any share exchange, consolidation or
merger of Parent (so long as the Issuer remains a Subsidiary of Parent) or the
Issuer pursuant to which either Parent’s or the Issuer’s Equity Interests
entitled to vote in the election of the Board of Directors of either Parent or
the Issuer generally would be converted into cash, securities or other
property, or Parent (so long as the Issuer remains a Subsidiary of Parent) or
the Issuer sells, assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets, in each case other than pursuant to a
share exchange, consolidation or merger of either Parent or the Issuer in which
Permitted Holders or the holders of either Parent’s or the Issuer’s Equity
Interests entitled to vote in the election of the Board of Directors of either
Parent or the Issuer generally immediately prior to the share exchange,
consolidation or merger have, directly or indirectly, at least a majority of
the total voting power in the aggregate of all classes of Equity Interests of
the continuing or surviving entity entitled to vote in the election of the
Board of Directors of such Person generally immediately after the share
exchange, consolidation or merger.


 


Notwithstanding the foregoing, a transaction
will not be deemed to involve a Change of Control if (1) Parent becomes a
direct or indirect wholly-owned subsidiary (the “Sub Entity”) of a holding company and (2) holders of
securities that represented 100% of the voting power of the Equity Interests of
Parent immediately prior to such transaction (or other securities into which
such securities are converted as part of such merger or consolidation
transaction) own directly or indirectly at least a majority of the voting power
of the Equity Interests of such holding company (and no Person or group other
than a Permitted Holder owns, directly or indirectly, a majority of the voting
power of the Equity Interests of such holding company); provided that, upon the consummation of
any such transaction, “Change of Control” shall thereafter include any Change
of Control of any direct or indirect parent of the Sub Entity.


 


“Commission”
means the Securities and Exchange Commission.


 


“Consolidated
Cash Flow” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period (i) plus, to the
extent deducted in computing Consolidated Net Income:


 


(a)  provision for taxes based on income or profits;


 


(b)  Consolidated Interest Expense; and


 


(c)  Consolidated Non-Cash Charges of such Person for such period;


 


(ii) minus, to the extent not excluded from the calculation of
Consolidated Net Income, non-cash gain or income of such Person for such period
(except to the extent representing an accrual for future cash receipts).


 


“Consolidated
Interest Expense” means, with respect to any Person for any period,
consolidated interest expense of such Person for such period, whether paid or
accrued, including 


 


5

















 


amortization of original issue discount and deferred financing costs,
noncash interest payments and the interest component of Capital Lease
Obligations, on a consolidated basis determined in accordance with GAAP; provided, however,
that with respect to the calculation of the consolidated interest expense of
the Issuer, the interest expense of Unrestricted Subsidiaries shall be
excluded.


 


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


 


(a)  the Net Income of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to the referent
Person, in the case of a gain, or to the extent of any contributions or other
payments by the referent Person, in the case of a loss;


 


(b)  the Net Income of any Person that is a Subsidiary that is not a
Restricted Subsidiary shall be included only to the extent of the amount of
dividends or distributions paid in cash to the referent Person;


 


(c)  solely for purposes of Section 4.07, the Net Income of any
Subsidiary of such Person that is not a Guarantor shall be excluded to the
extent that the declaration or payment of dividends or similar distributions is
not at the time permitted by operation of the terms of its charter or bylaws or
any other agreement, instrument, judgment, decree, order, statute, rule or
government regulation to which it is subject;


 


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


 


(e)  any after-tax effect of income (loss) (x) from the early
extinguishment of Indebtedness or Hedging Obligations or other derivative
instruments, (y) sales or dispositions of assets (other than in the
ordinary course of business), or (z) that is extraordinary or
non-recurring shall be excluded;


 


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


 


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


 


(h)  any fees, expenses and other charges in connection with the
Transactions or any acquisition, investment, asset disposition, issuance or
repayment of debt, issuance of Equity Interests, refinancing transaction or
amendment or other modification of any debt instrument shall be excluded; and


 


(i)   gains and losses resulting solely from fluctuations in foreign
currencies shall be excluded.


 


6
















 


“Consolidated Non-Cash Charges”
means, with respect to any Person for any period, the aggregate depreciation,
amortization, impairment, compensation, rent, other non-cash expenses and
write-offs and write-downs of assets of such Person and its Restricted Subsidiaries
for such period on a consolidated basis and otherwise determined in accordance
with GAAP, but excluding any such charge which consists of or requires an
accrual of, or cash reserve for, anticipated cash charges for any future
period.


 


“Consolidated Secured Indebtedness
Leverage Ratio” means, as of any date of determination, the ratio of
(1) the Total Secured Debt as of such date of determination to (2) Consolidated
Cash Flow of the Issuer for the period of the most recent four consecutive
fiscal quarters for which internal financial statements are available, with
such pro forma and other
adjustments to each of Total Secured Debt and Consolidated Cash Flow as are
appropriate and consistent with the pro
forma and other adjustment provisions set forth in the definition of
Consolidated Total Indebtedness Leverage Ratio.


 


“Consolidated Senior Indebtedness Leverage Ratio”
means, as of any date of determination, the ratio of (1) Total Senior Debt
as of such date of determination to (2) Consolidated Cash Flow of the
Issuer for the period of the most recent four consecutive fiscal quarters for
which internal financial statements are available, with such pro forma and other adjustments to each of Total Senior Debt
and Consolidated Cash Flow as are appropriate and consistent with the pro forma and other adjustment provisions set forth in the
definition of Consolidated Total Indebtedness Leverage Ratio.


 


“Consolidated Total Assets”
shall mean, as of any date of determination for any Person, the total assets of
such Person and its Subsidiaries on a consolidated basis, as shown on the most
recent balance sheet of such Person immediately preceding such date of
determination.


 


“Consolidated Total Indebtedness Leverage Ratio”
means, as of any date of determination, the ratio of (1) Total
Indebtedness as of such date of determination to (2) Consolidated Cash
Flow of the Issuer for the period of the most recent four consecutive fiscal
quarters for which internal financial statements are available (the “Measurement
Period”) ending prior to the date of the transaction giving rise to the need to
calculate the Consolidated Total Indebtedness Leverage Ratio (the “Transaction
Date”).  In addition to and without
limitation of the foregoing, for purposes of this definition, “Indebtedness”
and “Consolidated Cash Flow’’ shall be calculated after giving effect on a pro forma basis for the period of such calculation to:


 


(1)        the incurrence or
repayment of any Indebtedness of such person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business to
finance working capital needs pursuant to working capital facilities, occurring
during the Measurement Period or at any time subsequent to the last day of the
Measurement Period and on or prior to the Transaction Date, as if such incurrence
or repayment, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Measurement Period; and


 


7

















 


(2)        any Asset Sales or
other dispositions or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such person or one of its Restricted Subsidiaries (including any person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Debt and also
including any Consolidated Cash Flow (including any Pro Forma Cost Savings)
attributable to the assets which are the subject of the Asset Acquisition or
Asset Sale or other disposition during the Measurement Period) occurring during
the Measurement Period or at any time subsequent to the last day of the
Measurement Period and on or prior to the Transaction Date, as if such Asset
Sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Acquired Debt) occurred on the first day
of the Measurement Period.


 


“Corporate Trust Office of
the Trustee” shall be at the address of the Trustee specified in Section 11.02
or such other address as to which the Trustee may give notice to the Issuer,
Guarantors or Holders pursuant to the procedures set forth in Section 11.02.


 


“Credit Agreement” means
the credit agreement dated as of the Issue Date (or, if applicable, on or about
the date of Release) by and among the Issuer, as borrower, the lenders party
thereto from time to time, Wachovia Bank, National Association, as
administrative agent, and Barclays Capital, as syndication agent, together with
the related documents thereto (including, without limitation, any guarantee
agreements and security documents) as such agreement or facility may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreement exchanging, extending the
maturity of, refinancing, renewing, replacing, substituting or otherwise
restructuring, whether in the bank or debt capital markets (or combination
thereof) (including increasing the amount of available borrowings thereunder or
adding Subsidiaries as additional borrowers or guarantors thereunder) all or
any portion of the Indebtedness under such agreement or facility or any
successor or replacement agreement or facility.


 


“Credit Facilities” means
one or more credit agreements or debt facilities to which the Issuer and/or one
or more of its Restricted Subsidiaries is party from time to time (including
without limitation the Credit Agreement), in each case with banks, investment
banks, insurance companies, mutual funds or other lenders or institutional
investors providing for revolving credit loans, term loans, debt securities,
bankers acceptances, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) or letters of credit, in each case
as such agreements or facilities may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement exchanging, extending the maturity of, refinancing,
renewing, replacing, substituting or otherwise restructuring, whether in the
bank or debt capital markets (or combination thereof) (including increasing the
amount of available borrowings thereunder or adding Subsidiaries as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness
under such agreement or facility or any successor or replacement agreement or
facility.


 


“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.


 


8

















 


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


 


“Depositary” means The Depository Trust Company and any and
all successors thereto appointed as depositary hereunder and having become such
pursuant to an applicable provision hereof.


 


“Disqualified Stock” means any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), 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 on which the Notes mature; provided, however,
that any such Capital Stock may require the issuer of such Capital Stock to
make an offer to purchase such Capital Stock upon the occurrence of certain
events if the terms of such Capital Stock provide that such an offer may not be
satisfied and the purchase of such Capital Stock may not be consummated until
the 91st day after the purchase of the Notes as required under Section 4.15.


 


“Domestic Cash Amount” means the amount of
cash and Cash Equivalents reflected in the bank statements of the Issuer and
its Domestic Subsidiaries immediately after giving effect to the Transactions,
in an aggregate amount not to exceed $50.0 million.


 


“Domestic Restricted Subsidiaries” shall
mean all Restricted Subsidiaries that are Domestic Subsidiaries.


 


“Domestic Subsidiary”
shall mean any Subsidiary other than a Foreign Subsidiary.


 


“Eligible Institution”
means a commercial banking institution that has combined capital and surplus of
not less than $500.0 million or its equivalent in foreign currency, whose debt
is rated by at least two nationally recognized statistical rating organizations
in one of each such organization’s four highest generic rating categories at
the time as of which any investment or rollover therein is made.


 


“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).


 


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


 


“Exchange Agreement”
means the Notes Exchange and Consent Agreement dated as of July 17, 2008
among IAC, the Issuer and the Exchanging Noteholders.


 


“Exchange Notes”
means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof
or pursuant to a registered exchange offer for Notes with a Private Placement
Legend issued after the Issue Date.


 


9

















 


“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.


 


“Exchanging Noteholders”
means those Persons identified as Exchanging Noteholders in the Exchange
Agreement.


 


“Existing Indebtedness”
means any Indebtedness (other than the Notes and the Guarantees) of the Issuer
and its Subsidiaries in existence on the Issue Date after giving effect to the
use of proceeds from this offering contemplated by the Incorporated OM Sections
until such amounts are repaid.


 


“Foreign Cash Amount”
means the amount of cash and Cash Equivalents reflected in the bank statements
of the Issuer’s Foreign Subsidiaries immediately after giving effect to the
Transactions and, to the extent such amount is repatriated, net of all
applicable taxes in connection with such repatriation, in an aggregate amount
not to exceed $70.0 million.


 


“Foreign Currency Obligations”
means, with respect to any Person, the obligations of such Person pursuant to
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Issuer or any Restricted
Subsidiary of the Issuer against fluctuations in currency values.


 


“Foreign Subsidiaries”
shall mean (i) any Subsidiary that is not incorporated, formed or
organized under the laws of the United States of America, any State thereof or
the District of Columbia and (ii) any Subsidiary of a Subsidiary described
in the foregoing clause (i).


 


“GAAP” means United
States generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, which are applicable as of the date of determination; provided
that, except as otherwise specifically provided, all calculations made for
purposes of determining compliance with the terms of the provisions of this
Indenture shall utilize GAAP as in effect on the Issue Date.


 


“Global Note Legend” means the legend set forth
in Section 2.01 hereof, which is required to be placed on all Global Notes
issued under this Indenture.


 


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


 


“Government Securities”
means direct obligations of, or obligations guaranteed or insured by, the
United States or any agency or instrumentality thereof for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.


 


10

















 


“guarantee” means a
guarantee (other than by endorsement of negotiable instruments for collection
in the ordinary course of business), direct or indirect, in any manner
(including, without limitation, letters of credit and reimbursement agreements
in respect thereof), of all or any part of any Indebtedness.


 


“Guarantee” means a
guarantee by a Guarantor of the Notes.


 


“Guarantor” means any direct or indirect
Domestic Restricted Subsidiary of the Issuer that guarantees the Notes, and its
successors and assigns, and, upon execution of a supplemental indenture
pursuant to which it becomes a Guarantor, Parent.


 


“Hedging Obligations”
means, with respect to any Person, the obligations of such Person pursuant to
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements designed to protect such Person against fluctuations
in interest rates.


 


“Holder” means, with
respect to any Note, the Person in whose name such Note is registered.


 


“IAC” means
IAC/InterActiveCorp, a Delaware corporation.


 


“Incorporated OM Sections” has the
meaning specified in the Exchange Agreement.


 


“Indebtedness” means,
with respect to any Person, any indebtedness of such Person, whether or not
contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof, but excluding, in any case, any undrawn letters
of credit) or representing the balance deferred and unpaid of the purchase
price of any property (including pursuant to capital leases) or representing
any Hedging Obligations or Foreign Currency Obligations, except any such
balance that constitutes an accrued expense or trade payable, if and to the
extent any of the foregoing (other than Hedging Obligations or Foreign Currency
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, and also includes, to the extent not
otherwise included, the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Restricted Subsidiary of such Person, the liquidation
preference with respect to, any Preferred Equity Interests (but excluding, in
each case, any accrued dividends) as well as the guarantee of items that would
be included within this definition.


 


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


 


“Independent Financial Advisor”
means a Person or entity which, in the judgment of the Board of Directors of
the Issuer, is independent and otherwise qualified to perform the task for
which it is to be engaged.


 


11

















 


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


 


“Initial Notes”
means the $300,000,000 in aggregate principal amount of 9.5% Senior Notes due
2016 of the Issuer issued under this Indenture on the Issue Date.


 


“Investment Grade”
designates a rating of BBB- or higher by S&P or Baa3 or higher by Moody’s
or the equivalent of such ratings by S&P or Moody’s. In the event that the
Issuer shall select any other Rating Agency, the equivalent of such ratings by
such Rating Agency shall be used.


 


“Investments” means, with
respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the forms of loans (including guarantees), advances
or capital contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP (excluding accounts receivable, deposits and prepaid expenses in the
ordinary course of business, endorsements for collection or deposits arising in
the ordinary course of business, guarantees and intercompany notes permitted by
Section 4.09, and commission, travel and similar advances to officers and
employees made in the ordinary course of business). For purposes of Section 4.07,
the sale of Equity Interests of a Person that is a Restricted Subsidiary
following which such Person ceases to be a Subsidiary shall be deemed to be an
Investment by the Issuer in an amount equal to the fair market value of the
Equity Interests of such Person held by the Issuer and its Restricted
Subsidiaries immediately following such sale.


 


“Issue Date” means August 19,
2008.


 


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


 


“Letter of Transmittal”
means the letter of transmittal to be prepared by the Issuer 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 and any lease in the nature thereof).


 


“Marketable Securities”
means: (a) Government Securities; (b) any certificate of deposit
maturing not more than 365 days after the date of acquisition issued by, or
time deposit of, an Eligible Institution; (c) commercial paper maturing
not more than 365 days after the date of acquisition issued by a
corporation (other than an Affiliate of the Issuer) with a rating by at least
two nationally recognized statistical rating organizations in one of each such
organization’s four highest generic rating categories at the time as of which
any investment therein is made, issued or offered by an Eligible Institution; (d) any
bankers’ acceptances or money market deposit accounts issued or offered by an
Eligible Institution and (e) any fund investing exclusively in investments
of the types described in clauses (a) through (d) above.


 


12

















 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Net Income” means, with
respect to any Person, the net income (loss) of such Person, determined in
accordance with GAAP.


 


“Net Proceeds” means the
aggregate cash proceeds received by the Issuer or any of its Restricted
Subsidiaries, as the case may be, in respect of any Asset Sale, net of the
direct costs relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (estimated reasonably and in good faith by the Issuer and after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets that are the subject of such Asset
Sale, any reserve for adjustment in respect of the sale price of such asset or
assets and any reserve in accordance with GAAP against any liabilities
associated with the asset disposed of in such Asset Sale and retained by the
Issuer or any of its Subsidiaries after such Asset Sale (provided that at such
time as such reserve is no longer necessary, any such cash amounts shall be
deemed to be “Net Proceeds”), including pension and other post-employment
benefit liabilities and liabilities related to environmental matters, or
against any indemnification obligations associated with such Asset Sale.  Net Proceeds shall exclude any noncash
proceeds received from any Asset Sale, but shall include such proceeds when and
as converted by the Issuer or any Restricted Subsidiary to cash.


 


“Notes” means
the Initial Notes, the Exchange Notes and any other notes issued after the
Issue Date in accordance with the fourth paragraph of Section 2.02 hereof
treated as a single class of securities.


 


“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, Controller, Secretary or any
Vice President of such Person, or any other officer designated by the Board of
Directors serving in a similar capacity.


 


“Officers’ Certificate”
means a certificate signed on behalf of the Issuer by two Officers of such
Person or of such Person’s partner or managing member, one of whom must be the
principal executive officer, principal financial officer, treasurer or
principal accounting officer of such Person or of such Person’s partner or
managing member, that meets the requirements of Section 11.05.


 


“Opinion of Counsel”
means an opinion from legal counsel, who may be an employee of or counsel to
the Issuer or any Subsidiary of the Issuer, that meets the requirements of Section 11.05.


 


“Parent” means
the Issuer’s parent company, Interval Leisure Group, Inc., and its
successors, in each case together with each Subsidiary of Parent that
beneficially owns any of the Issuer’s Equity Interests.


 


13

















 


“Participant”
means, with respect to the Depositary, a Person who has an account with the
Depositary.


 


“Permitted Business”
means the businesses of the Issuer and its Restricted Subsidiaries conducted
(or proposed to be conducted) on the Issue Date and any business reasonably
related, ancillary or complementary thereto and any reasonable extension or
evolution of any of the foregoing.


 


“Permitted Holder” means
each of (a) prior to the Spin-Off, IAC and its Subsidiaries, (b) Parent,
(c) any Person who acquires beneficial ownership of Equity Interests of
the Issuer in a transaction constituting a Change of Control as to which a
Change of Control Offer is consummated and (d) any Affiliate of the
foregoing formed by such Person for purposes of holding its equity investment
in the Issuer or Parent (but excluding any other portfolio company of any such
Person).


 


“Permitted Investments”
means:


 


(a)  Investments
in the Issuer or in a Restricted Subsidiary;


 


(b)  Investments
in Cash Equivalents and Marketable Securities;


 


(c)  any
guarantee of obligations of the Issuer or a Restricted Subsidiary permitted by Section 4.09;


 


(d)  Investments
by the Issuer or any of its Subsidiaries in a Person if, as a result of such
Investment: (i) such Person becomes a Restricted Subsidiary 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 Issuer
or a Restricted Subsidiary;


 


(e)  Investments
received in settlement of debts created in the ordinary course of business and
owing to the Issuer or any of its Restricted Subsidiaries, in satisfaction of
judgments or as payment on a claim made in connection with any bankruptcy,
liquidation, receivership or other insolvency proceeding;


 


(f)   Investments
in existence on the Issue Date;


 


(g)  Investments
in any Person to the extent such Investment represents the non-cash portion of
the consideration received for an Asset Sale that was made pursuant to and in
compliance with Section 4.10 or for an asset disposition that does not
constitute an Asset Sale;


 


(h)  loans
or advances or other similar transactions with customers, distributors,
clients, developers, suppliers or purchasers or sellers of goods or services,
in each case, in the ordinary course of business, regardless of frequency;


 


(i)   other
Investments in an amount not to exceed the greater of (x) $25.0 million
and (y) 2.5% of Consolidated Total Assets outstanding at any time for all
such Investments made after the Issue Date, plus, so long as no Default or
Event of Default 


 


14

















 


shall have occurred or be continuing, each of (x) the Domestic
Cash Amount and (y) the Foreign Cash Amount;


 


(j)   any
Investment solely in exchange for the issuance of the Issuer’s Qualified
Capital Stock;


 


(k)  any
investment in connection with Hedging Obligations and Foreign Currency
Obligations otherwise permitted under this Indenture;


 


(l)   Investments
in joint ventures in an amount not to exceed the greater of (x) $25.0 million
and (y) 2.5% of Consolidated Total Assets outstanding at any time;


 


(m) any
contribution of any Investment in a joint venture or partnership that is not a
Restricted Subsidiary to a Person that is not a Restricted Subsidiary in
exchange for an Investment in the Person to whom such contribution is made; and


 


(n)  Investments
consisting of guarantees of Indebtedness in reliance on Section 4.09(b)(14).


 


“Permitted Liens” means:


 


(a)  Liens
securing the Notes and Liens securing any Guarantee;


 


(b)  Liens
securing (x) Indebtedness under any Credit Facility (and related Hedging
Obligations and cash management obligations to the extent such Liens arise
under the definitive documentation governing such Indebtedness and the
incurrence of such obligations is not otherwise prohibited by this Indenture)
permitted by Section 4.09(b)(2) and (y) other Indebtedness
permitted under Section 4.09; provided
that in the case of any such Indebtedness described in this subclause (y),
such Indebtedness, when aggregated with the amount of Indebtedness of the
Issuer and the Guarantors (other than Parent) which is secured by a Lien, does
not cause the Consolidated Secured Indebtedness Leverage Ratio to exceed 1.50
to 1.0 as of the last day of the most recent quarter for which internal
financial statements are available on the date such Indebtedness is incurred;


 


(c)  Liens
securing (i) Hedging Obligations and Foreign Currency Obligations
permitted to be incurred under Section 4.09 and (ii) cash management
obligations not otherwise prohibited by this Indenture;


 


(d)  Liens
securing Purchase Money Indebtedness permitted under Section 4.09(b)(6);
provided that such Liens do not extend to any assets of the Issuer or its
Restricted Subsidiaries other than the assets so acquired, constructed,
installed or improved, products and proceeds thereof and insurance proceeds
with respect thereto;


 


(e)  Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Issuer or any of its Restricted Subsidiaries; provided that such Liens were not incurred
in connection with, or in contemplation of, such merger or 


 


15

















 


consolidation and do not apply to any assets other than the assets of
the Person acquired in such merger or consolidation;


 


(f)   Liens
on property of an Unrestricted Subsidiary at the time that it is designated as
a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”;
provided that such Liens were not incurred in connection with, or contemplation
of, such designation;


 


(g)  Liens
on property existing at the time of acquisition thereof by the Issuer or any
Restricted Subsidiary of the Issuer; provided
that such Liens were not incurred in connection with, or in contemplation of,
such acquisition and do not extend to any assets of the Issuer or any of its
Restricted Subsidiaries other than the property so acquired, constructed,
installed or improved, products and proceeds thereof and insurance proceeds
with respect thereto;


 


(h)  Liens
to secure the performance of statutory obligations, surety or appeal bonds or
performance bonds, or landlords’, carriers’, warehousemen’s, mechanics’,
suppliers’, materialmen’s or other like Liens, in any case incurred in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate process of law, if a reserve or
other appropriate provision, if any, as is required by GAAP is made therefor;


 


(i)   Liens
existing on the Issue Date;


 


(j)   Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings; provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP is made therefor;


 


(k)  Liens
securing Indebtedness permitted under Section 4.09(b)(10); provided that such Liens shall not extend
to assets other than the assets that secure such Indebtedness being refinanced;


 


(l)   Liens
(other than Liens created or imposed under ERISA) incurred or deposits made by
the Issuer or any of its Restricted Subsidiaries in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);


 


(m)  easements, rights-of-way,
covenants, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered property for its intended
purposes;


 


(n)  licenses,
sublicenses, leases or subleases granted to others not interfering in any
material respect with the business of the Issuer or its Restricted
Subsidiaries;


 


16

















 


(o)  Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods
and Liens deemed to exist in connection with Investments in repurchase
agreements that constitute Cash Equivalents;


 


(p)  normal
and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;


 


(q)  Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;


 


(r)   Liens
not provided for in clauses (a) through (q) above so long as the
Notes are secured by the assets subject to such Liens on an equal and ratable
basis or on a basis prior to such Liens; provided
that to the extent that such Lien secures Indebtedness that is subordinated to
the Notes, such Lien shall be subordinated to and be later in priority than the
Notes on the same basis;


 


(s)  Liens
securing Indebtedness of any Foreign Subsidiary incurred in accordance with Section 4.09(b)(15);


 


(t)   Liens
in favor of the Issuer or any Guarantor;


 


(u)  Liens
securing reimbursement obligations with respect to commercial letters of credit
which solely encumber goods and/or documents of title and other property
relating to such letters of credit and products and proceeds thereof;


 


(v)  extensions,
renewals or refundings of any Liens referred to in clauses (e), (g) or
(i) above; provided that any
such extension, renewal or refunding does not extend to any assets or secure
any Indebtedness not securing or secured by the Liens being extended, renewed
or refinanced; and


 


(w) other
Liens securing Indebtedness that is permitted by the terms of this Indenture to
be outstanding having an aggregate principal amount at any one time outstanding
not to exceed $40.0 million.


 


“Person” means any individual,
corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust or unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).


 


“Preferred Equity Interest”
in any Person, means an Equity Interest of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions,
or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over Equity Interests of any other
class in such Person.


 


“Private Placement Legend” means the
legend set forth in Section 2.01 hereof to be placed on all Notes issued
under this Indenture except where otherwise permitted by the provisions hereof.


 


17

















 


“Pro Forma Cost Savings”
means, with respect to any period, the reduction in net costs and expenses and
related adjustments that (i) were directly attributable to an acquisition,
merger, consolidation or disposition that occurred during the four-quarter
reference period or subsequent to the four-quarter reference period and on or
prior to the date of determination and calculated on a basis that is consistent
with Regulation S-X under the Securities Act as in effect and applied as
of the Issue Date, (ii) were actually implemented by the business that was
the subject of any such acquisition, merger, consolidation or disposition
within 12 months after the date of the acquisition, merger, consolidation
or disposition and prior to the date of determination that are supportable and
quantifiable by the underlying accounting records of such business or (iii) relate
to the business that is the subject of any such acquisition, merger,
consolidation or disposition and that are probable in the reasonable judgment
of the Issuer based upon specifically identifiable actions to be taken within
12 months of the date of the acquisition, merger, consolidation or
disposition (regardless of whether such cost savings or operating improvements
could then be reflected in pro forma
financial statements in accordance with Regulation S-X under the
Securities Act or any other regulation or policy related thereto) and, in the
case of each of (i), (ii) and (iii), are described, as provided below, in
an Officers’ Certificate, as if all such reductions in costs had been effected
as of the beginning of such period.  Pro
Forma Cost Savings described above shall be accompanied by an Officers’
Certificate delivered to the Trustee from the chief financial officer or chief
accounting officer of the Issuer that outlines the actions taken or to be
taken, the net cost savings or operating improvements achieved or expected to
be achieved from such actions and that, in the case of clause (iii) above,
such savings have been determined by the Issuer to be probable.


 


“Purchase Money Indebtedness”
means Indebtedness (including Capital Lease Obligations) incurred (within
365 days of such purchase) to finance or refinance the purchase (including
in the case of Capital Lease obligations the lease), construction, installation
or improvement of any assets used or useful in a Permitted Business (whether
through the direct purchase of assets or through the purchase of Capital Stock
of any Person owning such assets); provided
that the amount of Indebtedness thereunder does not exceed 100% of the purchase
cost of such assets and costs incurred in such construction, installation or
improvement.


 


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


 


“Qualified Capital Stock”
means any Capital Stock of the Issuer that is not Disqualified Stock.


 


“Rating Agencies” means:


 


(a)  S&P;


 


(b)  Moody’s;
or


 


(c)  if
S&P or Moody’s or both shall not make a rating of the Notes publicly
available, a nationally recognized securities rating agency or agencies, as the
case may be, selected by the Issuer, which shall be substituted for S&P or
Moody’s or both, as the case may be.


 


18

















 


“Registration Rights
Agreement” means the Registration Rights Agreement for the Initial
Notes, to be entered into by and among the Issuer, the Guarantors and the
Exchanging Noteholders, as such agreement may be amended, modified or
supplemented from time to time.


 


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


 


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


 


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


 


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


 


“Restricted Subsidiary”
or “Restricted Subsidiaries”
means any Subsidiary, other than Unrestricted Subsidiaries.


 


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


 


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


 


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


 


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


 


“Secured Indebtedness”
means any Indebtedness secured by a Lien on any assets of the Issuer or any
Domestic Subsidiary that is a Restricted Subsidiary.


 


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


 


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


 


“Specified Affiliate Payments”
means (i) amounts paid by the Issuer or any of its Subsidiaries to IAC or
Parent or any other Person with which the Issuer is (or, prior to the Spin-Off,
was) included in a consolidated, combined or unitary tax return equal to the
amount of federal, state and local income taxes payable in respect of the
Issuer’s income and the income of its Subsidiaries, and any payments made in
accordance with any tax allocation or tax sharing agreement to the extent not
inconsistent with the terms described in the Incorporated OM Sections and (ii) amounts
paid by the Issuer or any of its Subsidiaries to IAC (or any of its 


 


19

















 


Affiliates)
pursuant to any agreement between the Issuer (or any of its Subsidiaries) and
IAC (or any of its Affiliates) entered into in connection with the Spin-Off.


 


“Spin-Off” means the
distribution of shares of Parent to the shareholders of IAC as contemplated by
the Offering Memorandum.


 


“Subordinated Indebtedness”
means Indebtedness of the Issuer or any Restricted Subsidiary that is expressly
subordinated in right of payment to the Notes or the Guarantees, as the case
may be.


 


“Subsidiary” or “Subsidiaries” means, with respect to any
Person, any corporation, limited liability company, 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 such Person or a combination thereof.


 


“TIA” means the Trust Indenture Act of
1939 as in effect on the date hereof.


 


“Total Indebtedness” means, as of any
date of determination, the aggregate principal amount of Indebtedness of the
Issuer and its Restricted Subsidiaries (other than Hedging Obligations and cash
management obligations to the extent permitted by this Indenture) outstanding
on such date, determined on a consolidated basis.


 


“Total Secured Debt”
means, as of any date of determination, the aggregate principal amount of
Secured Indebtedness of the Issuer and the Guarantors (other than Parent)
(other than Hedging Obligations and cash management obligations to the extent
permitted by this Indenture) outstanding on such date, determined on a
consolidated basis.


 


“Total Senior Debt” means, as of any date
of determination, the aggregate principal amount of Indebtedness of the Issuer
and its Restricted Subsidiaries (other than Hedging Obligations and cash
management obligations to the extent permitted by this Indenture) outstanding
on such date, determined on a consolidated basis, minus the aggregate principal
amount of Subordinated Indebtedness outstanding on such date, determined on a
consolidated basis.


 


“Transactions” means the
Spin-Off, the issuance of the Notes on the Issue Date, the initial borrowings
under the Credit Agreement, the distribution of the Notes issued on the Issue
Date and the initial borrowings under the Credit Agreement to IAC and the other
transactions undertaken in connection with the foregoing to the extent not
inconsistent with the Incorporated OM Sections or the pro forma
financial statements contained therein.


 


“Trustee” means
the Bank of New York Mellon until a successor replaces the Bank of New York
Mellon in accordance with the applicable provisions hereof and thereafter means
the successor serving hereunder.


 


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


 


20
















 


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


 


“Unrestricted
Subsidiary” or “Unrestricted
Subsidiaries” means: (A) any Subsidiary designated as an
Unrestricted Subsidiary in a resolution of the Issuer’s Board of Directors in
accordance with the instructions set forth below; and (B) any Subsidiary
of an Unrestricted Subsidiary.


 


The Issuer’s Board of Directors may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary so long as:


 


(a)                                  no
portion of the Indebtedness or any other obligation (contingent or otherwise)
of which, immediately after such designation: (i) is guaranteed by the
Issuer or any other Subsidiary of the Issuer (other than another Unrestricted
Subsidiary); (ii) is recourse to or obligates the Issuer or any other
Subsidiary of the Issuer (other than another Unrestricted Subsidiary) in any
way; or (iii) subjects any property or asset of the Issuer or any other
Subsidiary of the Issuer (other than another Unrestricted Subsidiary), or
Equity Interests issued by such Subsidiary, directly or indirectly,
contingently or otherwise, to satisfaction thereof;


 


(b)                                 neither
the Issuer nor any other Subsidiary (other than another Unrestricted
Subsidiary) has any contract, agreement, arrangement or understanding with such
Subsidiary, written or oral, other than on terms no less favorable to the
Issuer or such other Subsidiary than those that might be obtained at the time
from Persons who are not the Issuer’s Affiliates; and


 


(c)                                  neither
the Issuer nor any other Subsidiary (other than another Unrestricted
Subsidiary) has any obligation: (i) to subscribe for additional shares of
Capital Stock of such Subsidiary or other equity interests therein; or (ii) to
maintain or preserve such Subsidiary’s financial condition or to cause such
Subsidiary to achieve certain levels of operating results.


 


If at any time after the Issue Date the
Issuer designates an additional Subsidiary as an Unrestricted Subsidiary, the
Issuer will be deemed to have made a Restricted Investment in an amount equal
to the fair market value (as determined in good faith by the Issuer’s Board of
Directors evidenced by a resolution of the Issuer’s Board of Directors and set
forth in an Officers’ Certificate delivered to the Trustee no later than ten
Business Days following a request from the Trustee) of such Subsidiary. An
Unrestricted Subsidiary may be designated as a Restricted Subsidiary if, at the
time of such designation after giving pro forma
effect thereto, no Default or Event of Default shall have occurred or be
continuing.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at
any date, the number of years obtained by dividing (a) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or 


 


21

















 


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 will elapse between such date and the making of
such payment by (b) the then outstanding principal amount of such
Indebtedness.


 


SECTION 1.02.                                                       Other
Definitions.


 


	
   

  	
   

  	
  Defined

  
	
  Term

  	
   

  	
  in Section

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Payment”

  	
   

  	
  4.15

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance”

  	
   

  	
  8.04

  
	
  “Covenant Suspension Event”

  	
   

  	
  4.19

  
	
  “DTC”

  	
   

  	
  2.01(b)

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Excess Proceeds Offer”

  	
   

  	
  3.08(a)

  
	
  “Global Note Legend

  	
   

  	
  2.01(b)

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Initial Holder Transfer Instructions”

  	
   

  	
  2.01

  
	
  “Issuer”

  	
   

  	
  Preamble

  
	
  “Legal Defeasance”

  	
   

  	
  8.03

  
	
  “Measurement Period”

  	
   

  	
  “Consolidated Total Indebtedness Leverage Ratio”

  
	
  “Offer Amount”

  	
   

  	
  3.08(b)

  
	
  “Offer Period”

  	
   

  	
  3.08(b)

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  6.01(e)

  
	
  “Private Placement Legend”

  	
   

  	
  2.01(c)

  
	
  “Purchase Date”

  	
   

  	
  3.08(b)

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09(b)(ii)

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  



 


22

















 


	
  “Reversion Date”

  	
   

  	
  4.19(c)

  
	
  “Rule 144”

  	
   

  	
  2.01(c)

  
	
  “Sub Entity”

  	
   

  	
  “Change of Control”

  
	
  “Suspended Covenants”

  	
   

  	
  4.19(a)

  
	
  “Suspension Period”

  	
   

  	
  4.19(b)

  
	
  “Transaction Date”

  	
   

  	
  “Consolidated Total Indebtedness Leverage
  Ratio”

  



 


SECTION 1.03.                                                       Incorporation
by Reference of Trust Indenture Act.


 


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


 


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 means each of the Issuer and any successor obligor upon the Notes.


 


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


 


SECTION 1.04.                                                       Rules of
Construction.


 


Unless the context otherwise requires,


 


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


 


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


 


(3)                        “or” is not exclusive and “including”
means “including without limitation”;


 


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


 


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


 


23

















 


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


 


SECTION 1.05.                                                       Acts
of Holders; Record Dates.


 


(a)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders shall be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in Person or by an agent duly appointed in
writing; 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 Issuer.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose
hereof and conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section 1.05.


 


(b)                                 The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by 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 Person the execution thereof.  Where such execution is by a signer acting in
a capacity other than such Person’s individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such Person’s
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)                                  The
Issuer may, in the circumstances permitted by the TIA, fix any date as the
record date for the purpose of determining the Holders entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or take
by Holders.  If not set by the Issuer
prior to the first solicitation of a Holder made by any Person in respect of
any such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 2.05 hereof) prior to such first solicitation or vote, as the case
may be.  With regard to any record date,
only the Holders on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.


 


ARTICLE 2


 


THE NOTES


 


SECTION 2.01.                                                       Form and
Dating.


 


(a)                                  The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto, the terms of which are incorporated
in and made a part hereof.  The 


 


24

















 


Notes may have notations,
legends or endorsements approved as to form by the Issuer, and required by law,
stock exchange rule, agreements to which the Issuer is subject or usage.  Each Note shall be dated the date of its
authentication.  The Notes shall be
issuable only in denominations of $2,000 and integral multiples of $1,000 in
excess thereof.


 


(b)                                 The
Notes shall initially be issued in the form of one or more Definitive Notes,
which shall be registered in the name of the Holder thereof, shall be
Restricted Definitive Notes and shall be held by the Trustee on behalf the
Holder.  On the Issue Date, the Trustee
shall hold a certificate delivered by the initial Holder pursuant to Section 2.06(e)(i)(B) providing
for the transfer of the Notes by the initial Holder to the Exchanging Noteholders
as specified in such certificate on the date and at such time specified by the
initial Holder in written instructions delivered by the initial Holder to the
Trustee (the “Initial Holder Transfer Instructions”) and, after effecting such
transfer through the execution and authentication of Notes evidencing such
transfer to the Exchanging Noteholders in accordance with the initial Holder’s
certificate delivered pursuant to Section 2.06(e)(i)(B) and the
Initial Holder Transfer Instructions, the Trustee shall act upon a certificate
or certificates from the Exchanging Noteholders delivered by the Exchanging
Noteholders, providing for exchange of the Notes pursuant to Section 2.06(d)(1)(A) on
or after the date that is two Business Days after the Issue Date for one or
more Global Notes and The Depository Trust Company (“DTC”),
its nominees, and their respective successors, shall act as the Depositary with
respect thereto (and thereupon the Exchanging Noteholders shall be beneficial
owners of the Notes through Participants or Indirect Participants).  Each Global Note shall (i) be registered
in the name of the Depositary for such Global Note or the nominee of such
Depositary, (ii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary’s instructions, and (iii) shall bear a legend
(the “Global Note Legend”) in substantially
the following form:


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
OF THE INDENTURE AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE
OF THE DEPOSITARY OR A SUCCESSOR DEPOSITARY. 
THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A 


 


25

















 


NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


(c)                                  Except
as permitted by Section 2.06(g) hereof, any Note not registered under
the Securities Act shall bear the following legend (the “Private
Placement Legend”) on the face thereof:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION.  NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.


 


The Trustee must refuse to
register any transfer of a Note bearing the Private Placement Legend that would
violate the restrictions described in such legend.


 


The Private Placement Legend shall be deemed
removed from the face of any Note without further action of the Issuer, the
Trustee or the Holder of such Note at such time as the Issuer shall have
delivered an Officers’ Certificate to the Trustee certifying that the Private
Placement Legend can be removed because such Note may be resold to the
public in accordance with Rule 144 under the Securities Act or any
successor provision thereof (“Rule 144”)
without regard to volume, manner of sale or any other restrictions contained in
Rule 144 (other than the holding period requirement in paragraph (d)(1)(ii) of
Rule 144 so long as such holding period requirement is satisfied at such
time of determination) by Holders that are not Affiliates of the
Issuer.


 


SECTION 2.02.                                                       Form of
Execution and Authentication.


 


An Officer shall sign the Notes for the
Issuer by manual or facsimile signature.


 


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


 


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


 


The Trustee shall authenticate (i) Initial
Notes for original issue on the Issue Date in an aggregate principal amount of
$300,000,000 (initially in the form of Definitive Notes, including Definitive
Notes executed and authenticated to effect the transfers by the initial Holder
to the Exchanging Noteholders as described in Section 2.01(a), and
thereafter in the form of one or 


 


26

















 


more Global
Notes to effect the exchange of Definitive Notes by the Exchanging Noteholders
for a beneficial interest in one or more Global Notes, as described in Section 2.01(a)),
(ii) pursuant to the Exchange Offer, Exchange Notes from time to time for issue
only in exchange for a like principal amount of Initial Notes and (iii) subject
to compliance with Section 4.09 hereof, one or more series of Notes for
original issue after the Issue Date (such Notes to be substantially in the form
of Exhibit A) in an unlimited amount (and if issued with a Private Placement
Legend, the same principal amount of Exchange Notes in exchange therefor upon
consummation of a registered exchange offer), in each case upon written order
of the Issuer in the form of an Officers’ Certificate, which Officers’
Certificate shall, in the case of any issuance pursuant to clause (iii) above,
certify that such issuance is in compliance with Section 4.09 hereof.  In addition, each such Officers’ Certificate
shall specify the amount of Notes to be authenticated, the date on which the
Notes are to be authenticated, whether the securities are to be Initial Notes,
Exchange Notes or Notes issued under clause (iii) of the preceding
sentence and the aggregate principal amount of Notes outstanding on the date of
authentication, and shall further specify the amount of such Notes to be issued
as Global Notes or Definitive Notes. 
Such Notes shall initially be in the form of one or more Definitive
Notes, to be transfered by the initial Holder to the Exchanging Noteholders as
described in Section 2.01(a) in the form of Definitive Notes and
thereafter to be exchanged by the Exchanging Noteholders as described in Section 2.01(a) for
one or more Global Notes, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the Notes
to be issued, (ii) shall be registered in the name of the Depositary or
its nominee and (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction. 
All Notes issued under this Indenture shall vote and consent together on
all matters as one class and no series of Notes will have the right to vote or
consent as a separate class on any matter.


 


The Trustee may appoint an authenticating
agent acceptable to the Issuer to authenticate Notes.  Unless limited by the terms of such
appointment, 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 the Issuer or any Affiliate of the Issuer.


 


SECTION 2.03.                                                       Registrar
and Paying Agent.


 


The Issuer shall maintain (i) an office
or agency where Notes may be presented for registration of transfer or for
exchange (including any co-registrar, the “Registrar”) and
(ii) an office or agency where Notes may be presented for payment (“Paying Agent”).  The
Registrar shall keep a register of the Notes and of their transfer and
exchange.  The Issuer may appoint one or
more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent.  The Issuer may
change any Paying Agent, Registrar or co-registrar without prior notice to any
Holder of a Note.  The Issuer shall
notify the Trustee in writing and the Trustee shall notify the Holders of the
Notes of the name and address of any Agent not a party to this Indenture.  The Issuer may act as Paying Agent, Registrar
or co-registrar.  The Issuer shall enter
into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA.  The agreement shall implement the provisions
hereof that relate to such Agent.  The
Issuer shall notify the Trustee in writing of the name and address of any such
Agent.  If the Issuer fails to maintain a
Registrar or 


 


27

















 


Paying Agent,
or fails to give the foregoing notice, the Trustee shall act as such, and shall
be entitled to appropriate compensation in accordance with Section 7.07
hereof.


 


The Issuer initially appoints the Trustee as
Registrar, Paying Agent and agent for service of notices and demands in
connection with the Notes.


 


SECTION 2.04.                                                       Paying
Agent To Hold Money in Trust.


 


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


 


SECTION 2.05.                                                       Lists
of Holders of the Notes.


 


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 Holders of the Notes and shall otherwise comply with TIA §
312(a).  If the Trustee is not the
Registrar, the Issuer 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 Holders of the Notes,
including the aggregate principal amount of the Notes held by each thereof, and
the Issuer shall otherwise comply with TIA § 312(a).


 


SECTION 2.06.                                                       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. 
Global Notes will be exchanged by the Issuer for Definitive Notes,
subject to any applicable laws, if (i) the Issuer delivers to the Trustee
notice from the Depositary that (A) the Depositary is unwilling or unable
to continue to act as Depositary for the Global Notes or (B) the
Depositary is no longer a clearing agency registered under the Exchange Act
and, in either case, the Issuer fails to appoint a successor Depositary within
90 days after the date of such notice from the Depositary, (ii) the Issuer
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 or (iii) upon request of the Trustee or Holders
of a majority of the aggregate principal amount of outstanding Notes if there
shall have occurred and be continuing a Default or Event of Default with
respect to the Notes.  In any such case,
the Issuer will notify the Trustee in writing that, upon surrender by the
Participants and Indirect Participants of their interests in such Global 


 


28

















 


Note, Definitive Notes will be
issued to each Person that such Participants, Indirect Participants and DTC
jointly identify as being the beneficial owner of the related Notes.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof.  Every Note authenticated and delivered
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for
another Note other than as provided in this Section 2.06.  However, beneficial interests in a Global
Note may be transferred and exchanged as provided in paragraph (b), (c) or
(f) below.


 


(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 hereof and the Applicable Procedures.  Beneficial interests in the Restricted Global
Notes shall be subject to restrictions on transfer comparable to those set
forth in this Indenture to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also shall require compliance with the applicable subparagraphs
below.


 


(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. 
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note.  No written
orders or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this subparagraph (i) unless
specifically stated above.


 


(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 subparagraph (i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase or, (B) (1) if Definitive Notes are
at such time permitted to be issued pursuant to this Indenture, 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.  Upon consummation
of an Exchange Offer by the Issuer in accordance with paragraph (f) below,
the requirements of this subparagraph (ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the holder of such beneficial interests in
the Restricted Global Notes.  Upon
satisfaction of all of the 


 


29

















 


requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture
and the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s) pursuant
to paragraph (h) below.


 


(iii)            Transfer of Beneficial
Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of subparagraph (ii) above and the
Registrar receives from the transferor a certificate in the form of Exhibit C
hereto, including the certifications in item (1) thereof.


 


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


 


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


 


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


 


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


 


(D)                               the
Registrar receives the following:


 


(y)                                 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 D hereto,
including the certifications in item (1)(a) thereof, or


 


(z)                                   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 C hereto, including the applicable
certifications in item (4) thereof;


 


30

















 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained in this Indenture 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 Issuer shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (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 and Exchange of Beneficial Interests for Definitive Notes.


 


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


 


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


 


(C)                                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 C
hereto, including the certifications in item (3)(a) thereof;


 


(D)                               if
such beneficial interest is being transferred to the Issuer or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (3)(b) thereof; or


 


(E)                                 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 C hereto, including the certifications in item
(3)(c) thereof,


 


31

















 


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


 


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


 


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


 


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


 


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


 


(D)                               the
Registrar receives the following:


 


(y)                                 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 D
hereto, including the certifications in item (1)(b) thereof; or


 


(z)                                   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 C hereto,
including the applicable certifications in item (4) thereof,


 


32

















 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained in this Indenture 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 Issuer
shall issue and, upon receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D) above.


 


(iii)                               Transfer and Exchange of Beneficial Interests in Unrestricted Global
Notes for Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in subparagraph (b)(ii) above, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to paragraph (h) below, and the Issuer shall
execute and the Trustee shall authenticate and deliver to the Person designated
in the certificate a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this subparagraph (c)(iii) 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 subparagraph (c)(iii) shall
not bear the Private Placement Legend.


 


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


 


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


 


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


 


(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 C hereto, including the certifications in item (1) thereof,


 


33

















 


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, and in the case of clause (B) above,
the 144A Global Note.


 


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


 


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


 


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


 


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


 


(D)                               the
Registrar receives the following:


 


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


 


(z)                                   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 an Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the applicable certifications in item (4) thereof;


 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained in this Indenture 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 subparagraph (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)                               Transfer and Exchange of Unrestricted Definitive Notes for Beneficial
Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such 


 


34

















 


Note for a beneficial interest
in an Unrestricted Global Note or transfer such Unrestricted 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 an
Unrestricted Definitive Note or a Restricted Definitive Note, as the case may
be, to a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Issuer shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Unrestricted Definitive Notes
or Restricted Definitive Notes, as the case may be, 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 paragraph (e), the
Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
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 paragraph (e).


 


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


 


(A)                              if the transfer will be
made pursuant to Rule 144A under the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit C hereto,
including the certifications in item (1) thereof; and


 


(B)                                if the transfer will be
made pursuant to any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate in the form of Exhibit C
hereto, including, if the Registrar so requests, a certification or Opinion of
Counsel in form reasonably acceptable to the Issuer to the effect that such
transfer is in compliance with the Securities Act.


 


(ii)                                  Transfer and
Exchange of Restricted Definitive Notes for 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 an Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the transferee,
in the case of a transfer, certifies in the 


 


35

















 


applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an “affiliate” (as defined in Rule 144)
of the Issuer;


 


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


 


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


 


(D)                               the
Registrar receives the following:


 


(y)                                 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 D
hereto, including the certifications in item (1)(d) thereof; or


 


(z)                                   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 C hereto,
including the applicable certifications in item (4) thereof;


 


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


 


(iii)                               Transfer of
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 an Exchange Offer in accordance with the Registration Rights
Agreement, the Issuer shall issue and, upon receipt of an authentication order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) one
or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that make the certifications in the
applicable Letters of Transmittal required by Section 2(a) of the
Registration Rights Agreement, and accepted for exchange in an Exchange Offer
and (ii) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in an
Exchange Offer.  Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Issuer shall execute and the Trustee shall 


 


36

















 


authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amounts.


 


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


 


(i)                                     Private Placement Legend.


 


(A)                              Except as permitted by
subparagraph (B) below, each Global Note (other than an Unrestricted
Global Note) and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the Private Placement Legend.


 


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


 


(ii)                                  Global Note
Legend.  Each Global Note
shall bear the Global Note Legend.


 


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


 


(i)                                     General Provisions Relating to Transfers and Exchanges.


 


(i)                                     To permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Issuer’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 Issuer may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.02, 2.10, 3.06, 3.08 and 9.05 hereof).


 


37
















 


(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 for the unredeemed portion of any Note
being redeemed in part.


 


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


 


(v)                                 The Issuer shall not
be required (A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business on a Business Day 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 or (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.


 


(vi)                              Prior to due presentment
for the registration of a transfer of any Note, the Trustee, any Agent and the
Issuer 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 Issuer 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 Registrar
pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.


 


SECTION 2.07.                                                       Replacement
Notes.


 


If any mutilated Note is surrendered to the
Trustee, or the Issuer and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Note, the Issuer shall issue and the
Trustee, upon the written order of the Issuer signed by two Officers of the
Issuer, shall authenticate a replacement Note if the Trustee’s requirements for
replacements of Notes are met.  If
required by the Trustee or the Issuer, the Holder must supply an indemnity bond
sufficient in the judgment of the Trustee and the Issuer to protect the Issuer,
the Trustee, any Agent or any authenticating agent from any loss which any of
them may suffer if a Note is replaced. 
The Issuer and the Trustee may charge for their expenses in replacing a
Note.


 


Every replacement Note is a joint and several
obligation of the Issuer.


 


SECTION 2.08.                                                       Outstanding
Notes.


 


The Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section 2.08
as not outstanding.


 


38

















 


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


 


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


 


Subject to Section 2.09 hereof, a Note
does not cease to be outstanding because the Issuer, a Subsidiary of the Issuer
or an Affiliate of the Issuer holds the Note.


 


SECTION 2.09.                                                       Treasury
Notes.


 


In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Issuer, any Subsidiary of the Issuer or any
Affiliate of the Issuer shall be considered as though not outstanding, except
that for purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a
Responsible Officer knows to be so owned shall be so considered.  Notwithstanding the foregoing, Notes that are
to be acquired by the Issuer, any Subsidiary of the Issuer or an Affiliate of
the Issuer pursuant to an exchange offer, tender offer or other agreement shall
not be deemed to be owned by the Issuer, a Subsidiary of the Issuer or an
Affiliate of the Issuer until legal title to such Notes passes to the Issuer,
such Subsidiary or such Affiliate, as the case may be.


 


SECTION 2.10.                                                       Temporary
Notes.


 


Until Definitive Notes are ready for
delivery, the Issuer may prepare and the Trustee shall authenticate temporary
Notes.  Temporary Notes shall be substantially
in the form of definitive Notes but may have variations that the Issuer and the
Trustee consider appropriate for temporary Notes.  Without unreasonable delay, the Issuer shall
prepare and the Trustee, upon receipt of the written order of the Issuer signed
by two Officers of the Issuer, shall authenticate definitive Notes in exchange
for temporary Notes.  Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as Definitive Notes.


 


SECTION 2.11.                                                       Cancellation.


 


The Issuer at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment.  The Trustee shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall dispose of all canceled Notes in its customary manner (subject to the
record retention requirements of the Exchange Act), unless the Issuer directs
canceled Notes to be returned to it.  The
Issuer may not issue new Notes to replace Notes that it has redeemed or paid or
that have been delivered to the Trustee for cancellation; provided that new
Notes shall be issued and authenticated in place of cancelled Notes as provided
by the terms of this Indenture.  All
canceled Notes held by the Trustee shall be disposed of and certification of
their disposal delivered to the Issuer upon its request therefor, unless by a
written order, signed by two Officers of the Issuer, the Issuer shall direct
that canceled Notes be returned to it.


 


39

















 


SECTION 2.12.                                                       Defaulted
Interest.


 


If the Issuer defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders of the Notes on a subsequent special record date, which
date shall be at the earliest practicable date but in all events at least five Business
Days prior to the payment date, in each case at the rate provided in the
Notes.  The Issuer shall, with the
consent of the Trustee, fix or cause to be fixed each such special record date
and payment date.  At least 15 days
before the special record date, the Issuer (or the Trustee, in the name of and
at the expense of the Issuer) shall mail to Holders of the Notes a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.


 


SECTION 2.13.                                                       Record
Date.


 


The record date for purposes of determining
the identity of Holders of the Notes entitled to vote or consent to any action
by vote or consent authorized or permitted under this Indenture shall be
determined as provided for in TIA § 316(c).


 


SECTION 2.14.                                                       CUSIP
Number.


 


The Issuer in issuing the Notes may use a “CUSIP”
number and, if it does so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Notes and that reliance may be placed only on the other identification numbers
printed on the Notes.  The Issuer shall
promptly notify the Trustee in writing of any change in the CUSIP number.


 


ARTICLE 3


 


REDEMPTION


 


SECTION 3.01.                                                       Notices
to Trustee.


 


If the Issuer elects to redeem Notes pursuant
to the optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 35 days (unless a shorter period is acceptable
to the Trustee) but not more than 60 days before a redemption date, an Officers’
Certificate of the Issuer setting forth (i) the redemption date, (ii) the
principal amount of Notes to be redeemed and (iii) the redemption
price.  If the Issuer is required to make
the redemption pursuant to Section 3.08 hereof, it shall furnish the
Trustee, at least five but not more than ten Business Days before the
applicable purchase date, an Officers’ Certificate of the Issuer setting forth (i) the
purchase date, (ii) the principal amount of Notes offered to be purchased
and (iii) the purchase price.


 


40

















 


SECTION 3.02.                                                       Selection
of Notes To Be Redeemed.


 


(a)                                  If
less than all of the Notes are to be redeemed at any time in accordance with Section 3.07
hereof, the selection of Notes for redemption shall be made by the Trustee 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, or, by lot or in accordance with the Trustee’s
customary practices, subject to the applicable rules of the Depositary; provided that no Notes with a principal amount of $2,000 or
less shall be redeemed in part.  In the
event of partial redemption by lot, the particular Notes to be redeemed shall
be selected, unless otherwise provided herein, not less than 30 nor more than
60 days prior to the redemption date by the Trustee from the outstanding Notes
not previously called for redemption.


 


(b)                                 The
Trustee shall promptly notify the Issuer in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. 
Notes and portions of them selected shall be in amounts of $2,000 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 hereof that
apply to Notes called for redemption also apply to portions of Notes called for
redemption.


 


SECTION 3.03.                                                       Notice
of Redemption.


 


Subject to the provisions of Sections 3.08
hereof, at least 30 days but not more than 60 days before a redemption date,
the Issuer shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder (with a copy to the Trustee) whose Notes are to be
redeemed to such Holder’s 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 only, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion 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;


 


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


 


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


 


41

















 


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


 


At the Issuer’s written request, the Trustee
shall give the notice of redemption in the Issuer’s name and at the Issuer’s
expense; provided that the Issuer shall have
delivered to the Trustee, at least 10 days (unless a shorter period is
acceptable to the Trustee) prior to the date the Issuer wishes to have the
notice given, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.


 


SECTION 3.04.                                                       Effect
of Notice of Redemption.


 


Once notice of redemption is mailed in
accordance with Section 3.03 hereof, Notes called for redemption become
due and payable on the redemption date at the redemption price.


 


SECTION 3.05.                                                       Deposit
of Redemption Price.


 


On or prior to any redemption date, the
Issuer shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption price of and accrued interest on all Notes to be redeemed
on that date.  The Trustee or the Paying
Agent shall promptly return to the Issuer any money deposited with the Trustee
or the Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.


 


On and after the redemption date, if the
Issuer does not default in the payment of the redemption price, interest shall
cease to accrue on the Notes or the portions of Notes called for
redemption.  If a Note is redeemed on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record
date.  If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of
the Issuer to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes.


 


SECTION 3.06.                                                       Notes
Redeemed in Part.


 


Upon surrender and cancellation of a Note
that is redeemed in part, the Issuer shall issue and the Trustee shall
authenticate for the Holder of the Notes at the expense of the Issuer a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.


 


SECTION 3.07.                                                       Optional
Redemption.


 


                                                The
Notes will not be redeemable prior to September 1, 2012.  Thereafter, the Notes will be subject to
redemption at the option of the Issuer, in whole or in part, upon not less than
30 days’ or more than 60 days’ notice, at 100% of the aggregate principal
amount of the Notes to be redeemed, together with accrued and unpaid interest
to such redemption date.


 


42

















 


SECTION 3.08.                                                       Excess
Proceeds Offer.


 


(a)                                  When
the cumulative amount of Excess Proceeds that have not been applied in
accordance with Section 4.10 exceeds $25.0 million, the Issuer shall make
an offer to all Holders of the Notes (an “Excess Proceeds Offer”)
to purchase the maximum principal amount of Notes that may be purchased out of
such Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof, together with accrued and unpaid interest to the
date fixed for the closing of such offer in accordance with the procedures set
forth herein.  To the extent the Issuer
or a Restricted Subsidiary is required under the terms of Indebtedness of the
Issuer or such Restricted Subsidiary (other than Subordinated Indebtedness),
the Issuer shall make a pro rata offer to the holders of all such Indebtedness
(including the Notes) with such proceeds. 
If the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof
exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes
and other pari passu Indebtedness to be purchased
on a pro rata basis.  To the extent that
the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is
less than the amount of such Excess Proceeds and other pari passu
Indebtedness, the Issuer may use any remaining Excess Proceeds for general corporate
purposes in compliance with the provisions of this Indenture.  Upon completion of an Excess Proceeds Offer,
the amount of Excess Proceeds shall be reset at zero.


 


(b)                                 The
Excess Proceeds Offer shall remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the “Offer Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase Date”),
the Issuer shall purchase the maximum principal amount of Notes  and pari passu
Indebtedness that may be purchased with such Excess Proceeds (which maximum
principal amount of Notes and pari passu
Indebtedness shall be the “Offer Amount”)
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Excess Proceeds Offer.


 


(c)                                  The
Issuer shall comply with the requirements of Rule 14e 1 under the Exchange
Act (or any successor rules) and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Notes pursuant to an Excess Proceeds Offer.  To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 3.08,
the Issuer’s compliance with such laws and regulations shall not in and of
itself be deemed to have caused a breach of their obligations under this Section 3.08.


 


(d)                                 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 Excess Proceeds Offer.


 


(e)                                  Upon
the commencement of any Excess Proceeds Offer, the Issuer shall send, by first
class mail, a notice to each of the Holders of the Notes, 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 Excess Proceeds Offer. 
The notice, which shall govern the terms of the Excess Proceeds Offer,
shall state:


 


43

















 


(i)                                               that the
Excess Proceeds Offer is being made pursuant to this Section 3.08 and the
length of time the Excess Proceeds Offer shall remain open;


 


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


 


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


 


(iv)                                        that, unless
the Issuer defaults in making such payment, any Note accepted for payment
pursuant to the Excess Proceeds Offer shall cease to accrue interest after the
Purchase Date;


 


(v)                                           that Holders
electing to have a Note purchased pursuant to any Excess Proceeds 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, to the Issuer, a
Depositary, if appointed by the Issuer, or a Paying Agent at the address
specified in the notice at least three Business Days before the Purchase Date;


 


(vi)                                        that Holders
shall be entitled to withdraw their election if the Issuer, Depositary or
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 unconditionally
withdrawing his election to have the Note purchased;


 


(vii)                                     that, if the
aggregate principal amount of Notes surrendered by Holders and other pari passu Indebtedness tendered by the holders thereof
exceeds the Offer Amount, the Issuer shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuer so that only Notes in denominations of $2,000, or
integral multiples of $1,000 in excess thereof, shall be purchased); and


 


(viii)                                  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.


 


(f)                                    On
or before the Purchase Date, the Issuer 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 Excess Proceeds Offer, or if less than the Offer Amount has been tendered,
all Notes or portion thereof tendered, and deliver to the Trustee an Officers’
Certificate stating that such Notes or portions thereof were accepted for
payment by the Issuer in accordance with the terms of this Section 3.08.  The Issuer, Depositary or 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 the Note tendered by such Holder and accepted by the
Issuer for purchase, and the Issuer shall promptly issue a new Note, and the
Trustee shall authenticate and mail or deliver such new Note, to such Holder
equal in principal amount to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Issuer to the Holder thereof.  The Issuer shall publicly announce the
results of the Excess Proceeds Offer on the Purchase Date.


 


44

















 


(g)                                 Other
than as specifically provided in this Section 3.08, any purchase pursuant
to this Section 3.08 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.


 


ARTICLE 4


 


COVENANTS


 


SECTION 4.01.                                                       Payment
of Notes.


 


(a)                                  The
Issuer shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the
Notes.  Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Issuer, holds as of 10:00 a.m. Eastern Time on the due date money
deposited by or on behalf of the Issuer in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.  If a payment date is
a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.


 


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


 


SECTION 4.02.                                                       Maintenance
of Office or Agency.


 


(a)                                  The
Issuer shall maintain an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served.  The Issuer
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. 
If at any time the Issuer 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
Issuer may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency for such purposes.  The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


(c)                                  The
Issuer hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Issuer in accordance with Section 2.03 hereof.


 


45

















 


SECTION 4.03.                                                       Reports.


 


(a)                                  Whether
or not required by the rules and regulations of the Commission, so long as
any Notes are outstanding, the Issuer shall furnish to the Holders of Notes all
quarterly and annual financial information, and on dates, that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Issuer was required to file such forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report thereon by the
independent registered public accounting firm of the Issuer; provided, however, that (i) to
the extent such reports are filed with the Commission and publicly available,
no additional copies need be provided to Holders of the Notes and (ii) with
respect to June 30, 2008 (and periods then ended), or for any prior dates
or periods, the Issuer may satisfy such obligations by furnishing carve out
financial data in form and detail corresponding to the March 31, 2008
financial data included in the Incorporated OM Sections so long as such
information is filed or provided on or before August 31, 2008.


 


(b)                                 The
Issuer will file the information described in Section 4.03(a) with
the Commission to the extent that the Commission is accepting such
filings.  In addition, for so long as any
Notes remain outstanding during any period when the Issuer is not subject to Section 13
or 15(d) of the Exchange Act, or otherwise permitted to furnish the Commission
with certain information pursuant to Rule 12g3-2(b) of the Exchange
Act, the Issuer will furnish to the Holders of the Notes and to prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.


 


(c)                                  So
long as Parent remains a Guarantor, the Issuer may satisfy its obligations
under this Section 4.03 with respect to financial information relating to
the Issuer by furnishing financial information relating to Parent; provided
that such financial information relating to Parent is accompanied by
consolidating information that reconciles, in reasonable detail, the
differences between the information relating to Parent, on the one hand, and
the information relating to the Issuer and its Restricted Subsidiaries, on the
other hand.


 


(d)                                 The
Issuer shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information that the Trustee may be required to
deliver to the Holders of the Notes under this Section 4.03.


 


SECTION 4.04.                                                       Compliance
Certificate.


 


The Issuer shall deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officers’
Certificate of the Issuer stating that a review of the activities of the Issuer
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
Issuer and Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge each such
entity has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof, including,
without limitation, a default in the performance or breach of Section 4.07,
Section 4.09, Section 4.10 or Section 4.15 hereof (or, if a
Default or Event of Default shall have 


 


46

















 


occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action each is
taking or proposes to take with respect thereto).


 


SECTION 4.05.                                                       Taxes.


 


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


 


SECTION 4.06.                                                       Stay,
Extension and Usury Laws.


 


The Issuer covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim 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 hereof; and the Issuer (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


SECTION 4.07.                                                       Limitation
on Restricted Payments.


 


(a)                                  Neither
the Issuer nor any of its Restricted Subsidiaries may, directly or indirectly:


 


(i)                                     pay any dividend
or make any distribution on account of any Equity Interests of the Issuer other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Issuer;


 


(ii)                                  purchase, redeem or
otherwise acquire or retire for value any of the Issuer’s Equity Interests or
Equity Interests of Parent, or any Subordinated Indebtedness, other than (i) Subordinated
Indebtedness within one year of the stated maturity date thereof and (ii) any
such Equity Interests or Subordinated Indebtedness owned by the Issuer or by
any Restricted Subsidiary;


 


(iii)                               pay any dividend or make
any distribution on account of any Equity Interests of any Restricted
Subsidiary, other than:


 


(A)                              to the Issuer or any
Restricted Subsidiary; or


 


(B)                                to all holders of any
class or series of Equity Interests of such Restricted Subsidiary on a pro rata basis; or


 


(iv)                              make any Restricted
Investment


 


47

















 


(all such prohibited payments
and other actions set forth in clauses (i) through (iv) being
collectively referred to as “Restricted Payments”),
unless, at the time of such Restricted Payment:


 


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


 


(2)                                  after
giving effect to the incurrence of any Indebtedness the net proceeds of which
are used to finance such Restricted Payment, the Issuer is able to incur at
least $1.00 of additional Indebtedness in compliance with Section 4.09(a);
and


 


(3)                                  such
Restricted Payment, together with the aggregate of all other Restricted Payments
made after the Issue Date, is less than the sum of:


 


(A)                50% of the Consolidated Net Income of
the Issuer for the period (taken as one accounting period) from July 1,
2008 to the end of the Issuer’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income shall be a deficit, minus 100% of
such aggregate deficit); plus


 


(B)                  an amount equal to the sum of (x) 100%
of the aggregate net cash proceeds and the fair market value of any property or
assets received by the Issuer either from capital contributions, or from the
issue or sale (including an issue or sale to Parent) of Equity Interests (other
than Disqualified Stock) of the Issuer (other than Equity Interests sold to any
of the Issuer’s Subsidiaries), following the Issue Date and (y) the
aggregate amount by which Indebtedness (other than any Indebtedness owed to the
Issuer or a Subsidiary) incurred by the Issuer or any Restricted Subsidiary
subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the
conversion or exchange into Qualified Capital Stock (less the amount of any
cash, or the fair market value of assets, distributed by the Issuer or any
Restricted Subsidiary upon such conversion or exchange); plus


 


(C)                  if any Unrestricted Subsidiary is
designated by the Issuer as a Restricted Subsidiary, an amount equal to the
fair market value of the net Investment by the Issuer or a Restricted
Subsidiary in such Subsidiary at the time of such designation; provided, however,
that the foregoing amount shall not exceed the amount of Restricted Investments
made by the Issuer or any Restricted Subsidiary in any such Unrestricted
Subsidiary following the Issue Date which reduced the amount available for
Restricted Payments pursuant to this clause (iii) less amounts received by the Issuer or any
Restricted Subsidiary from such Unrestricted Subsidiary that increased the
amount available for Restricted Payments pursuant to clause (D) below; plus


 


48

















 


(D)                 100% of any cash dividends and other
cash distributions actually received by the Issuer and its Restricted
Subsidiaries from an Unrestricted Subsidiary since the Issue Date to the extent
not included in Consolidated Net Income; plus


 


(E)                   to the extent not included in
clauses (A) through (D) above, an amount equal to the net reduction
in Restricted Investments of the Issuer and its Restricted Subsidiaries
following the Issue Date resulting from payments in cash of interest on
Indebtedness, dividends, or repayment of loans or advances, or other transfers
of property, in each case, to the Issuer or to a Restricted Subsidiary or from
the net cash proceeds from the sale, conveyance, liquidation or other disposition
of any such Restricted Investment.


 


(b)                                 The
foregoing provisions will not prohibit the following (provided
that with respect to clause (7) below, no Default or Event of Default
shall have occurred and be continuing):


 


(1)                                  the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions hereof;


 


(2)                                  the
redemption, repurchase, retirement or other acquisition of (x) any Equity
Interests of the Issuer in exchange for, or out of the net proceeds of the
substantially concurrent capital contribution from Parent or from the
substantially concurrent issue or sale (including to Parent) of, Equity
Interests (other than Disqualified Stock) of the Issuer (other than Equity
Interests (other than Disqualified Stock) issued or sold to any Subsidiary) or (y) Subordinated
Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange
for, or out of the proceeds of the substantially concurrent issuance and sale
of, Qualified Capital Stock, (b) in exchange for, or out of the proceeds
of the substantially concurrent incurrence of, Refinancing Indebtedness
permitted to be incurred under clause (10) of Section 4.09 or other
Indebtedness permitted to be incurred under Section 4.09 or (c) with
the Net Proceeds from an Asset Sale or upon a Change of Control, in each case,
to the extent required by the agreement governing such Subordinated
Indebtedness but only if the Issuer shall have previously applied such Net
Proceeds to make an Excess Proceeds Offer or make a Change of Control Offer, as
the case may be, in accordance with Sections 3.08 and 4.15 and purchased all
Notes validly tendered pursuant to the relevant offer prior to redeeming or
repurchasing such Subordinated Indebtedness;


 


(3)                                  the
declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or
shares of Preferred Equity Interests of any Restricted Subsidiary issued in
accordance with Section 4.09;


 


(4)                                  repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
or upon the vesting of restricted stock units if such Equity Interests 


 


49

















 


represent the exercise price of such options
or warrants or represent withholding taxes due upon such exercise or vesting;


 


(5)                                  Restricted
Payments from the net proceeds of the Notes and the initial borrowings under
the Credit Agreement as described in Incorporated OM Sections;


 


(6)                                  other
Restricted Payments in an amount not to exceed $40.0 million;


 


(7)                                  amounts
paid by the Issuer to Parent in an amount sufficient to permit Parent to pay
reasonable and necessary accounting, legal, general overhead and administrative
expenses of Parent (including amounts described in clauses (i) and (ii) of
Section 4.11(b)) but only to the extent such expenses are directly
attributable to the ownership or operation of the Issuer and its Subsidiaries;


 


(8)                                  Specified
Affiliate Payments; and


 


(9)                                  the
Transactions.


 


(c)                                  Restricted
Payments made pursuant to Section 4.07(a) and clause (1) of Section 4.07(b) shall
be included as Restricted Payments in any computation made pursuant to clause (3) of
Section 4.07(a). Restricted Payments made pursuant to clauses (2) through
(9) of Section 4.07(b) shall not be included as Restricted
Payments in any computation made pursuant to clause (3) of Section 4.07(a).


 


If the Issuer or any Restricted Subsidiary
makes a Restricted Investment and the Person in which such Investment was made
subsequently becomes a Restricted Subsidiary, to the extent such Investment
resulted in a reduction in the amounts calculated under clause (3) of Section 4.07(a) or
under any other provision of this Section 4.07 (which was not subsequently
reversed), then such amount shall be increased by the amount of such reduction.


 


SECTION 4.08.                                                       Limitation
on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The Issuer shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:


 


(a)                                  pay
dividends or make any other distribution to the Issuer or any of the Restricted
Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Issuer or any of its Subsidiaries;


 


(b)                                 make
loans or advances to the Issuer or any of its Subsidiaries; or


 


(c)                                  transfer
any of the Issuer’s properties or assets to the Issuer or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of:


 


50

















 


(i)                                     Existing
Indebtedness and existing agreements as in effect on the Issue Date;


 


(ii)                                  applicable
law or regulation;


 


(iii)                               any
instrument governing Acquired Debt as in effect at the time of acquisition
(except to the extent such Indebtedness was 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;


 


(iv)                              by
reason of customary nonassignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;


 


(v)                                 Refinancing
Indebtedness; provided that the restrictions
contained in the agreements governing such Refinancing Indebtedness are no more
restrictive than those contained in the agreements governing the Indebtedness
being refinanced;


 


(vi)                              this
Indenture and the Notes or by the Issuer’s other Indebtedness ranking pari passu with the Notes; provided
that except as set forth in clause (vii) below such restrictions are no
more restrictive taken as a whole than those imposed by this Indenture and the
Notes;


 


(vii)                           any
Credit Facility; provided that such restriction is
no more restrictive taken as a whole than that imposed by the Credit Agreement
(and the collateral documents relating thereto) as in effect on the Issue Date
(or on the date of Release, as applicable);


 


(viii)                        Permitted
Liens;


 


(ix)                                any
agreement for the sale of any Subsidiary or its assets that restricts
distributions by that Subsidiary (or sale of such Subsidiary’s Equity
Interests) pending its sale; provided that
during the entire period in which such encumbrance or restriction is effective,
such sale (together with any other sales pending) would be permitted under the
terms of this Indenture;


 


(x)                                   secured
Indebtedness otherwise permitted to be incurred by this Indenture that limits
the right of the debtor to dispose of the assets securing such Indebtedness;


 


(xi)                                customary
provisions in joint venture agreements and other similar agreements which are
applicable to the Equity Interests of such joint venturer;


 


(xii)                             Purchase
Money Indebtedness that imposes restrictions of the type described in clause (c) above
on the property so acquired;


 


51
















 


(xiii)                any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations
referred to in clauses (i) through (xii) above; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the Issuer’s good
faith judgment, not materially more restrictive as a whole with respect to such
encumbrances and restrictions than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing;


 


(xiv)               Indebtedness of any Foreign
Subsidiary which imposes restrictions solely on such Foreign Subsidiary and its
Subsidiaries; or


 


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


 


SECTION 4.09.                                                       Limitation on
Incurrence of Indebtedness.


 


(a)                                  The Issuer
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt) or permit
any of its Restricted Subsidiaries to issue any Preferred Equity Interests; provided, however, that,
notwithstanding the foregoing, the Issuer and any Guarantor may incur
Indebtedness (including Acquired Debt) and any Guarantor may issue Preferred
Equity Interests, if, after giving effect to the incurrence of such
Indebtedness or the issuance of such Preferred Equity Interests, the
Consolidated Senior Indebtedness Leverage Ratio of the Issuer would have been
no greater than 4.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net
proceeds therefrom) and the Consolidated Total Indebtedness Leverage Ratio of
the Issuer would have been no greater than 5.0 to 1.0, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom).


 


(b)                                                    The foregoing
limitation will not apply to any of the following incurrences of Indebtedness:


 


(1)               Indebtedness represented by the Notes (and
any Exchange Notes issued in exchange therefor) and the Guarantees in an
aggregate principal amount not to exceed $300.0 million;


 


(2)               Indebtedness of the Issuer or any Restricted
Subsidiary under any Credit Facility in an aggregate principal amount at any
time outstanding not to exceed the excess of $275 million over the aggregate
principal amount of Indebtedness under the Credit Facilities permanently repaid
pursuant to clause (1) of the second paragraph of Section 4.10;


 


(3)               (x) Indebtedness among the Issuer and
the Restricted Subsidiaries; provided that
any such Indebtedness owed by the Issuer or a Guarantor to any Restricted
Subsidiary that is not a Guarantor shall be subordinated to the prior payment
in full of the 


 


52

















 


Notes or the Guarantees, as
applicable, and (y) Preferred Equity Interests of a Restricted Subsidiary
held by the Issuer or a Restricted Subsidiary; provided
that if such Preferred Equity Interests are issued by a Guarantor, such
Preferred Equity Interests are held by the Issuer or a Guarantor;


 


(4)               Acquired Debt of a Person incurred prior to
the date upon which such Person was acquired by the Issuer or any Restricted
Subsidiary (and not created in contemplation of such acquisition); provided that the aggregate principal amount of Acquired
Debt pursuant to this clause (4) (when aggregated with the amount of
Refinancing Indebtedness outstanding under clause (10) below in respect of
Indebtedness incurred pursuant to this clause (4)) shall not exceed $35.0
million outstanding at any time;


 


(5)               Existing Indebtedness;


 


(6)               Indebtedness consisting of Purchase Money
Indebtedness in an aggregate amount (when aggregated with the amount of
Refinancing Indebtedness outstanding under clause (10) below in respect of
Indebtedness incurred pursuant to this clause (6)) not to exceed the greater of
(x) $50.0 million and (y) 5.0% of Consolidated Total Assets
outstanding at any time;


 


(7)               Hedging Obligations of the Issuer or any of
the Restricted Subsidiaries covering Indebtedness of the Issuer or such
Restricted Subsidiary; provided, however, that such Hedging Obligations are entered into for
purposes of managing interest rate exposure of the Issuer and the Restricted
Subsidiaries and not for speculative purposes;


 


(8)               Foreign Currency Obligations of the Issuer or
any of the Restricted Subsidiaries entered into to manage exposure of the
Issuer and the Restricted Subsidiaries to fluctuations in currency values and
not for speculative purposes;


 


(9)               Indebtedness of the Issuer or any of the
Restricted Subsidiaries in respect of performance bonds, bankers’ acceptances
or letters of credit of the Issuer or the Restricted Subsidiary or surety or
appeal bonds provided by the Issuer or any Restricted Subsidiary incurred in
the ordinary course of business and on ordinary business terms in connection
with a Permitted Business;


 


(10)         the incurrence by the Issuer or any Restricted
Subsidiary of Indebtedness issued in exchange for, or the proceeds of which are
used to extend, refinance, renew, replace, substitute or refund in whole or in
part, Indebtedness referred to in paragraph (a) of this Section 4.09
or in clause (1), (4), (5) or (6)  or this clause (10) of this Section 4.09(b) (“Refinancing Indebtedness”); provided,
however, that:


 


(A)                              the principal
amount of such Refinancing Indebtedness shall not exceed the principal amount
and accrued interest of the Indebtedness so exchanged, extended, refinanced,
renewed, replaced, substituted or refunded and any premiums payable and
reasonable fees, expenses, commissions and costs in connection therewith;


 


53





















 


(B)                                the Refinancing
Indebtedness shall have a final maturity equal to or later than, and a Weighted
Average Life to Maturity equal to or greater than, the final maturity and
Weighted Average Life to Maturity, respectively, of the Indebtedness being
exchanged, extended, refinanced, renewed, replaced, substituted or refunded;


 


(C)                                the Refinancing
Indebtedness shall be subordinated in right of payment to the Notes and the
Guarantees, if at all, on terms at least as favorable to the Holders of Notes
as those contained in the documentation governing the Indebtedness being
exchanged, extended, refinanced, renewed, replaced, substituted or refunded;
and


 


(D)                               if the
Indebtedness to be exchanged refinanced, renewed, replaced, substituted or
refunded was the obligation of the Issuer or Guarantor, such Indebtedness shall
not be incurred by any of the Restricted Subsidiaries other than a Guarantor or
any Restricted Subsidiary that was an obligor under the Indebtedness so
refinanced;


 


(11)                            additional
Indebtedness in an aggregate principal amount not to exceed the greater of (x) $40.0
million and (y) 4% of Consolidated Total Assets outstanding at any time; provided that, after giving effect to the incurrence of any
such Indebtedness, the Consolidated Senior Indebtedness Leverage Ratio of the
Issuer does not exceed 4.00 to 1.00 determined on a pro forma
basis (including a pro forma
application of the net proceeds therefrom);


 


(12)                            the guarantee
by the Issuer or any Guarantor of Indebtedness of the Issuer or a Restricted
Subsidiary that was permitted to be incurred by another provision of this Section 4.09
and the guarantee by any Restricted Subsidiary that is not a Guarantor of any
Indebtedness of any Restricted Subsidiary that is not a Guarantor;


 


(13)                            the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Capital Stock in the
form of additional shares of the same class of Disqualified Capital Stock;


 


(14)                            the incurrence
by the Issuer or its Subsidiaries of guarantees in respect of obligations of
joint ventures; provided that the aggregate
principal amount of Indebtedness incurred pursuant to this clause (14) shall
not exceed $30.0 million outstanding at any time;


 


(15)                            Indebtedness of
Foreign Subsidiaries in an aggregate principal amount not to exceed the greater
of (x) $40.0 million and (y) 4% of Consolidated Total Assets outstanding
at any time; provided that, after giving
effect to the incurrence of any such Indebtedness, the Consolidated Senior
Indebtedness Leverage Ratio of the Issuer does not exceed 4.00 to 1.00,
determined on a pro forma basis (including a pro forma application of the net proceeds therefrom);


 


(16)                            overdrafts paid
within 5 Business Days;


 


54

















 


(17)                            customary
purchase price adjustments and indemnifications in connection with acquisition
or disposition of stock or assets; and


 


(18)                            guarantees to
suppliers, licensors or franchisees (other than guarantees of Indebtedness) in
the ordinary course of business.


 


(c)                                  For purposes of
determining compliance with this Section 4.09, (1) the outstanding
principal amount of any item of Indebtedness shall be counted only once, and
any obligation arising under any guarantee, Lien, letter of credit or similar
instrument supporting such Indebtedness incurred in compliance with this Section 4.09
shall be disregarded, and (2) if an item of Indebtedness meets the
criteria of more than one of the categories described in clauses (b)(1) through
(18) above or is permitted to be incurred pursuant to Section 4.09(a) and
also meets the criteria of one or more of the categories described in clauses (1) through
(18) of Section 4.09(b), the Issuer shall, in its sole discretion,
classify such item of Indebtedness in any manner that complies with this Section 4.09
and may from time to time reclassify such item of Indebtedness in any manner in
which such item could be incurred at the time of such reclassification; provided that Indebtedness outstanding under the Credit
Agreement on the Issue Date or on or about the date of the Release, as
applicable (and any Indebtedness secured by a Lien that refinances such
Indebtedness) shall be deemed to be outstanding under paragraph (b)(2) above
and may not be reclassified.


 


(d)                                 Accrual of
interest, the accretion of original issue discount and the payment of interest
in the form of additional Indebtedness of the same class shall not be deemed to
be an incurrence of Indebtedness for purposes of determining compliance with
this Section 4.09.  Any increase in
the amount of Indebtedness solely by reason of currency fluctuations shall not
be deemed to be an incurrence of Indebtedness for purposes of determining
compliance with this Section 4.09. 
A change in GAAP that results in an obligation existing at the time of
such change, not previously classified as Indebtedness, becoming Indebtedness
will not be deemed to be an incurrence of Indebtedness for purposes of
determining compliance with this Section 4.09.


 


(e)                                  The amount of
indebtedness outstanding as of any date shall be (1) the accreted value
thereof, in the case of any Indebtedness issued with original issue discount, (2) the
principal amount thereof, in the case of any other Indebtedness, (3) in
the case of the guarantee by the specified Person of any Indebtedness of any
other Person, the maximum liability to which the specified Person may be
subject upon the occurrence of the contingency giving rise to the obligation
and (4) in the case of Indebtedness of others guaranteed by means of a
Lien on any asset of the specified Person, the lesser of (A) the fair
market value of such asset on the date on which Indebtedness is required to be
determined pursuant to this Indenture and (B) the amount of the
Indebtedness so secured.


 


(f)                                    For purposes of
determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated by the
Issuer based on the relevant currency exchange rate in effect on the date 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 refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-dominated restriction to 


 


55





















 


be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-dominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced.  Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Issuer may incur pursuant to this Section 4.09
shall not be deemed to be exceeded solely as a result of fluctuations in the
exchange rate of currencies. The principal amount of any Indebtedness incurred
to refinance other Indebtedness, if incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such Refinancing
Indebtedness is denominated that is in effect on the date of such refinancing.


 


SECTION 4.10.                                                                 Limitation on
Asset Sales.


 


The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Sale unless:


 


(1)                                  the Issuer or
such Restricted Subsidiary receives consideration at the time of such Asset
Sale at least equal to the fair market value (determined as of the time of
contractually agreeing to such Asset Sale) of the assets included in such Asset
Sale (such fair market value to be determined by (i) an executive officer
of the Issuer or such Subsidiary if the value is less than $10.0 million or (ii) in
all other cases by a resolution of the Issuer’s Board of Directors (or of a
committee appointed thereby for such purposes)); and


 


(2)                                  at least 75% of
the total consideration in such Asset Sale consists of cash or Cash Equivalents
or Marketable Securities.


 


For purposes of clause (2), the following shall be
deemed to be cash:


 


(a)                                  the amount
(without duplication) of any Indebtedness (other than Subordinated
Indebtedness) of the Issuer or such Restricted Subsidiary that is expressly assumed
by the transferee in such Asset Sale and with respect to which the Issuer or
such Restricted Subsidiary, as the case may be, is unconditionally released by
the holder of such Indebtedness,


 


(b)                                 the amount of
any obligations or securities received from such transferee that are within 180
days converted by the Issuer or such Restricted Subsidiary to cash (to the
extent of the cash actually so received), and


 


(c)                                  the fair market
value of any assets (other than securities) received by the Issuer or any Restricted
Subsidiary to be used by the Issuer or any Restricted Subsidiary in a Permitted
Business.


 


If the Issuer or any Restricted Subsidiary engages
in an Asset Sale, the Issuer or such Restricted Subsidiary shall apply all or
any of the Net Proceeds therefrom to:


 


56

















 


(1)               repay Indebtedness under any Credit Facility,
and in the case of any such repayment under any revolving credit facility,
effect a permanent reduction in the availability under such revolving credit
facility; or


 


(2)               (A) invest all or any part of the Net
Proceeds thereof in capital expenditures or the purchase of assets to be used
by the Issuer or any Restricted Subsidiary in a Permitted Business, (B) acquire
Equity Interests in a Person that is a Restricted Subsidiary or in a Person
engaged primarily in a Permitted Business that shall become a Restricted
Subsidiary immediately upon the consummation of such acquisition or (C) a
combination of (A) and (B).


 


Any Net Proceeds from any Asset Sale that are not
applied or invested (or committed pursuant to a written agreement to be
applied) as provided in the preceding paragraph within 365 days after the
receipt thereof and, in the case of any amount committed to a reinvestment,
which are not actually so applied within 180 days following such 365-day period
shall constitute “Excess Proceeds” and shall be
applied to an offer to purchase Notes and other senior Indebtedness of the
Issuer if and when required under Section 3.08.  Pending the final application of any such Net
Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce
revolving indebtedness under a Credit Facility, if any, or otherwise invest
such Net Proceeds in Cash Equivalents.


 


SECTION 4.11.                                                                 Limitation on
Transactions with Affiliates.


 


The Issuer shall not and shall not permit any
Restricted Subsidiary to, directly or indirectly, sell, lease, transfer or
otherwise dispose of any of the Issuer’s or any Restricted Subsidiary’s
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (including any Unrestricted Subsidiary) (each of
the foregoing, an “Affiliate Transaction”),
unless:


 


(a)                                  such Affiliate
Transaction is on terms that are not materially less favorable, taken as a
whole, to the Issuer or such Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Issuer or such Restricted
Subsidiary with an unrelated Person; provided that
such transaction shall be deemed to be at least as favorable as the terms that
could have been obtained in a comparable transaction with an unrelated Person
if such transaction is approved by the members of (x) the Board of Directors
or (y) any duly constituted committee thereof, in each case including a
majority of the disinterested members thereof who meet the independence
requirements of the New York Stock Exchange or NASDAQ; and


 


(b)                                 if such
Affiliate Transaction involves aggregate payments in excess of the greater of (A) $10.0
million and (B) 1% of Consolidated Total Assets, such Affiliate
Transaction has either (i) been approved by a resolution of the members of
(x) the Board of Directors of the Issuer or (y) any duly constituted
committee thereof, in each case including a majority of the disinterested
members thereof who meet the independence requirements of the New York Stock
Exchange or NASDAQ or (ii) if there are no disinterested directors on the
Board of Directors of the Issuer, the Issuer or such 


 


57

















 


Restricted Subsidiary has
obtained the favorable opinion of an Independent Financial Advisor as to the
fairness of such Affiliate Transaction to the Issuer or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view;


 


provided, however, that the following shall, in each case, not be
deemed Affiliate Transactions:


 


(i)                   the payment of
compensation (including benefits and incentive arrangements) to directors and
management of Parent, the Issuer and its Subsidiaries;


 


(ii)                indemnification or similar
arrangements for officers, directors, employees or agents of Parent, the Issuer
or any of the Restricted Subsidiaries pursuant to charter, bylaw, statutory or
contractual provisions;


 


(iii)             transactions between or
among the Issuer and the Restricted Subsidiaries;


 


(iv)            Restricted Payments
permitted by Section 4.07 and Permitted Investments (other than
transactions with a Person that is an Affiliate other than as a result of such
Investment);


 


(v)               any transactions between the
Issuer or any of the Restricted Subsidiaries and any Affiliate of the Issuer
the Equity Interests of which Affiliate are owned solely by the Issuer or one
of the Restricted Subsidiaries, on the one hand, and by Persons who are not
Affiliates of the Issuer or Restricted Subsidiaries, on the other hand;


 


(vi)            any agreements or
arrangements in effect on the Issue Date and described in the Incorporated OM
Sections, and any modifications, extensions or renewals thereof that are no
less favorable to the Issuer or the applicable Restricted Subsidiary in any
material respect than such agreement as in effect on the Issue Date;


 


(vii)         so long as it complies with
clause (a) above, customary transactions with suppliers or purchasers or
sellers of goods or services in the ordinary course of business;


 


(viii)      the Transactions;


 


(ix)              transactions with Persons
who are Affiliates of the Issuer solely as a result of the Issuer’s or a
Restricted Subsidiary’s Investment in such Person; and


 


(x)                 Specified Affiliate
Payments.


 


SECTION 4.12.                                                                 Limitation on
Liens.


 


The Issuer shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create, incur or assume any
Lien on any asset now owned or hereafter acquired, or on any income or profits
therefrom or assign or convey any right to receive income therefrom, except
Permitted Liens.


 


58

















 


SECTION 4.13.                                                                 Additional
Subsidiary Guarantees.


 


If (a) any of the Issuer’s Domestic
Subsidiaries that is not a Guarantor guarantees or becomes otherwise obligated
under a Credit Facility or Indebtedness incurred in reliance on Section 4.09(a),
or (b) the Issuer or any of the Issuer’s Restricted Subsidiaries transfers
or causes to be transferred, in one transaction or a series of related
transactions, any property to any Restricted Subsidiary that is a Domestic
Subsidiary but not a Guarantor, or if the Issuer or any of the Issuer’s
Subsidiaries shall organize, acquire or otherwise invest in another Domestic
Restricted Subsidiary and, in either case, the Subsidiary organized or acquired
or to which such transfer or investment was made has total assets in excess of
$10.0 million, then in each case such guarantor, obligor, transferee or
acquired or other Domestic Restricted Subsidiary shall (i) execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory
to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Issuer’s obligations under the Notes and
this Indenture on the terms set forth in this Indenture and (ii) deliver
to the Trustee an Opinion of Counsel that such supplemental indenture has been
duly authorized, executed and delivered by such Restricted Subsidiary and
constitutes a legal, valid, binding and enforceable obligation of such
Restricted Subsidiary.  Thereafter, such
Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture; provided, however, that
to the extent that a Restricted Subsidiary that is required to become a
Guarantor solely pursuant to clause (b) above is subject to any instrument
governing Acquired Debt, as in effect at the time of acquisition thereof and
not created in contemplation thereof, that prohibits such Restricted Subsidiary
from issuing a Guarantee, such Restricted Subsidiary shall not be required to
execute such a supplemental indenture until it is permitted to issue such
Guarantee pursuant to the terms of such Acquired Debt.


 


SECTION 4.14.                                                                 Organizational
Existence.


 


Subject to Article 5 hereof and the proviso to
this Section 4.14, the Issuer shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its existence
as a corporation and, subject to Section 4.10 hereof, the corporate,
limited liability company, partnership or other existence of any Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Issuer or any Restricted
Subsidiary and (ii) subject to Section 4.10 hereof, the rights
(charter and statutory), licenses and franchises of the Issuer and its
Restricted Subsidiaries; provided, however, that the Issuer shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any Restricted Subsidiary if the Board of Directors of the Issuer
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the Holders
of the Notes.


 


SECTION 4.15.                                                                 Change of
Control.


 


Upon the occurrence of a Change of Control, the
Issuer shall make an offer (a “Change of Control Offer”)
to each Holder of Notes to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder’s Notes at a purchase price equal to
101% of the aggregate principal amount thereof, together with accrued and
unpaid interest thereon to the date of repurchase (subject to the rights of
holders of record of the Notes on the relevant record date 


 


59

















 


to receive payments of
interest on the related interest payment date) (in either case, the “Change of Control Payment”). 
Within 30 days following any Change of Control, the Issuer shall mail a
notice to each Holder with a copy to the Trustee stating:


 


(1)                                       that the Change
of Control Offer is being made pursuant to this Section 4.15;


 


(2)                                       the purchase
price and the purchase date, which shall be no earlier than 30 days and not
later than 60 days after the date such notice is mailed (the “Change of Control Payment Date”);


 


(3)                                       that any Notes
not tendered will continue to accrue interest in accordance with the terms
hereof;


 


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


 


(5)                                       that Holders
will be entitled to withdraw their election if the paying agent receives, not
later than the close of business on the second business day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is unconditionally
withdrawing its election to have such Notes purchased;


 


(6)                                       that holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $2,000 in principal amount or an integral
multiple of $1,000 in excess thereof; and


 


(7)                                       any other information
material to such Holder’s decision to tender Notes.


 


The Issuer will 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 the
repurchase of the Notes required in the event of a Change of Control. The
Issuer will 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
Indenture applicable to Change of Control Offer made by the Issuer.  The Issuer’s obligations in respect of a
Change of Control Offer can be modified with the consent of holders of a
majority of the aggregate principal amount of Notes then outstanding at any
time prior to the occurrence of a Change of Control.  Notwithstanding anything to the contrary
herein, a Change of Control Offer may be made in advance of a Change of
Control, conditional upon such Change of Control, if a definitive agreement is
in place for the Change of Control at the time of making of the Change of
Control Offer.


 


SECTION 4.16.                                                       [Intentionally
Omitted].


 


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SECTION 4.17.                                                                 [Intentionally
Omitted].


 


SECTION 4.18.                                                                 Payments for
Consent.


 


The Issuer shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of a Note for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions hereof or the Notes unless such consideration is offered to be paid
or agreed to be paid to all Holders of the Notes that are either QIBs or that
are located outside of the United States and, in each case,  that
consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


SECTION 4.19.                                                                 Suspension of
Covenants.


 


(a)                         During any period of time after
the Issue Date that (i) the Notes are rated Investment Grade by both
Rating Agencies and (ii) no Default has occurred and is continuing under
this Indenture (the occurrence of the events described in the foregoing clauses
(i) and (ii) being collectively referred to as a “Covenant Suspension Event”), the Issuer and its Restricted
Subsidiaries will not be subject to the following Sections (the “Suspended Covenants”):


 


(1)               Section 3.08;


 


(2)               Section 4.07;


 


(3)               Section 4.08;


 


(4)               Section 4.09;


 


(5)               Section 4.10;


 


(6)               Section 4.11;


 


(7)               clause (d) of the first paragraph of Section 5.01.


 


(b)                        At such time as Sections
3.08, 4.07, 4.08, 4.09, 4.10, 4.11 and clause (d) of the first paragraph
of Section 5.01 are suspended (a “Suspension Period”),
the Issuer shall no longer be permitted to designate any Restricted Subsidiary
as an Unrestricted Subsidiary.


 


(c)                         In the event that the Issuer
and its Restricted Subsidiaries are not subject to the Suspended Covenants for
any period of time as a result of the foregoing, and on any subsequent date
(the “Reversion Date”) one or both of the
Rating Agencies withdraw their Investment Grade Rating or downgrade the rating
assigned to the Notes below Investment Grade, then the Issuer and its
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenant with respect to future events.


 


(d)                        On each Reversion Date, all
Indebtedness incurred during the Suspension Period prior to such Reversion Date
will be deemed to be Existing Indebtedness. 
For purposes of calculating the amount available to be made as
Restricted Payments under clause (3) of Section 


 


61

















 


4.07(a), calculations under
such section shall be made as though such section had been in effect during the
entire period of time after the Issue Date (including the Suspension
Period).  Restricted Payments made during
the Suspension Period not otherwise permitted pursuant to any of clauses (2) through
(8) under Section 4.07(b) will reduce the amount available to be
made as Restricted Payments under clause (3) of such Section 4.07(a),
provided that the amount available to be made as Restricted Payments on the
Reversion Date shall not be reduced to below zero solely as a result of such
Restricted Payments.  For purposes of Section 3.08,
on the Reversion Date, the unutilized amount of Net Proceeds will be reset to
zero.  Notwithstanding the foregoing,
neither (a) the continued existence, after the Reversion Date, of facts
and circumstances or obligations that were incurred or otherwise came into
existence during a Suspension Period nor (b) the performance of any such
obligations, shall constitute a breach of any covenant set forth herein or
cause a Default or Event of Default thereunder; provided that (1) the
Issuer and its Restricted Subsidiaries did not incur or otherwise cause such
facts and circumstances or obligations to exist in anticipation of a withdrawal
or downgrade by the applicable Rating Agency below an Investment Grade Rating
and (2) the Issuer reasonably believed that such incurrence or actions
would not result in such withdrawal or downgrade.


 


ARTICLE 5


 


SUCCESSORS


 


SECTION 5.01.                                                                 Merger,
Consolidation or Sale of Assets.


 


The Issuer shall not consolidate or merge with or
into (whether or not the Issuer is the surviving entity), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person
unless:


 


(a)                                  the Issuer is
the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than the Issuer ) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation, limited partnership or limited liability company organized
or existing under the laws of the United States, any state thereof or the
District of Columbia; provided, however, that if the surviving Person is a limited liability
company or limited partnership, such entity shall also form a co-issuer that is
a corporation;


 


(b)                                 the Person
formed by or surviving any such consolidation or merger (if other than the
Issuer) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the Issuer’s obligations
pursuant to a supplemental indenture in form reasonably satisfactory to the
Trustee under the Notes and this Indenture;


 


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


 


62

















 


(d)                                 the Issuer or
the Person formed by or surviving any such consolidation or merger (if other
than the Issuer) or to which such sale, assignment, transfer, lease, conveyance
or other disposition will have been made (i) will have a Consolidated
Total Indebtedness Leverage Ratio immediately after the transaction (but prior
to any purchase accounting adjustments or accrual of deferred tax liabilities
resulting from the transaction) not greater than the Issuer’s Consolidated
Total Indebtedness Leverage Ratio immediately preceding the transaction or (ii) would,
at the time of such transaction after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.09(a).


 


Notwithstanding the foregoing, (i) any
Restricted Subsidiary may consolidate with or merge into or transfer all or
part of its properties and assets to the Issuer or another Restricted Subsidiary,
(ii) the Issuer may complete the Transactions, and (iii) this Article 5
will not apply to a merger of the Issuer with a Restricted Subsidiary solely
for the purpose of reorganizing the Issuer in another jurisdiction of the
United States so long as the amount of Indebtedness of the Issuer and the
Restricted Subsidiary is not increased thereby.


 


SECTION 5.02.                                                                 Successor
Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
lease, conveyance or other disposition of all or substantially all of the
assets of the Issuer in accordance with Section 5.01 hereof, the successor
Person formed by such consolidation or into or with which the Issuer is merged
or to which such sale, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions hereof referring to the Issuer shall refer instead to the successor
corporation and not to the Issuer), and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such successor
Person has been named as the Issuer herein. 
When a successor Person assumes all the obligations of the Issuer under
the Notes and the Indenture pursuant to this Article 5, the applicable
predecessor shall be released from the obligations so assumed.


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.                                                                 Events of
Default.


 


Each of the following constitutes an “Event of Default”:


 


(a)                                  default for 30
days in the payment when due of interest or additional interest, if any, on the
Notes;


 


(b)                                 default in
payment when due of principal of or premium, if any, on the Notes at maturity,
upon repurchase, redemption or otherwise;


 


63
















 


(c)           failure to comply with the
provisions described under Sections 3.08 and 5.01;


 


(d)           failure to comply for 30
days after notice with any obligations under the provisions described under
Sections 4.10 and 4.15 (other than a failure to purchase Notes duly tendered to
the Issuer for repurchase pursuant to a Change of Control Offer or an Excess
Proceeds Offer);


 


(e)           subject to the last
paragraph of Section 6.02, default under any other provision of this
Indenture or the Notes, which default remains uncured for 60 days after notice
from the Trustee or the Holders of at least 25% of the aggregate principal
amount then outstanding of the Notes;


 


(f)            default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Issuer and
any of the Restricted Subsidiaries (or the payment of which is guaranteed by
the Issuer and any of the Restricted Subsidiaries), which default is caused by
a failure to pay the principal of such Indebtedness at the final stated
maturity thereof within the grace period provided in such Indebtedness (a “Payment Default”), and the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default, aggregates $25.0 million or more;


 


(g)           default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Issuer and
any of the Restricted Subsidiaries (or the payment of which is guaranteed by
the Issuer or any of its Restricted Subsidiaries), which default results in the
acceleration of such Indebtedness prior to its express maturity not rescinded
or cured within 30 days after such acceleration, and the principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated and remains undischarged after such 30 day
period, aggregates $25.0 million or more;


 


(h)           failure by the Issuer and
any of the Restricted Subsidiaries to pay final judgments (other than any
judgment as to which a reputable insurance company has accepted full liability)
aggregating $25.0 million or more, which judgments are not stayed within 60
days after their entry;


 


(i)            any Guarantee of a
Significant Subsidiary shall be held in a judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect, or any Guarantor that qualifies as a Significant Subsidiary, or any
Person acting on behalf of any Guarantor that qualifies as a Significant
Subsidiary, shall deny or disaffirm its obligations under its Guarantee;


 


(j)            the Issuer or any
Significant Subsidiary of the Issuer pursuant to or within the meaning of
Bankruptcy Law (i) commences a voluntary case; (ii) consents to the
entry of an order for relief against it in an involuntary case; (iii) consents
to the 


 


64

















 


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; and


 


(k)           a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:  (i) is for relief against the Issuer or
any Significant Subsidiary of the Issuer in an involuntary case; (ii) appoints
a custodian of the Issuer or any Significant Subsidiary of the Issuer or for
all or substantially all of the property of the Issuer or any Significant
Subsidiary of the Issuer; or (iii) orders the liquidation of the Issuer or
any Significant Subsidiary of the Issuer, and the order or decree remains
unstayed and in effect for 60 consecutive days.


 


SECTION 6.02.                    Acceleration.


 


If any Event of Default occurs and is continuing,
the Trustee by notice to the Issuer or the Holders of at least 25% of the
aggregate principal amount then outstanding of the Notes by written notice to
the Issuer and the Trustee, may declare all the Notes to be due and payable
immediately.  Notwithstanding the
foregoing, in the case of an Event of Default specified in paragraph (j) or
(k) of Section 6.01 hereof with respect to the Issuer, all
outstanding Notes shall become and shall be immediately due and payable without
further action or notice.  Holders of the
Notes may not enforce this Indenture or the Notes except as provided in this
Indenture.  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) if it determines that withholding notice is in such Holders’
interest.


 


Any failure to perform, or breach under Section 4.03
shall not be a Default or an Event of Default until the 121st day after the
Issuer has received the notice referred to in clause (e) of Section 6.01
(at which point, unless cured or waived, such failure to perform or breach
shall constitute an Event of Default). 
Prior to such 121st day, remedies against the Issuer for any such
failure or breach will be limited to additional interest at a rate per year
equal to 0.25% of the principal amount of such Notes from the 60th day
following such notice to and including the 121st day following such notice.


 


SECTION 6.03.                    Other Remedies.


 


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


 


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


 


SECTION 6.04.                    Waiver of Past
Defaults.


 


Holders of not less than a majority in aggregate
principal amount of Notes then outstanding, by written notice to the Trustee,
may on behalf of the Holders of all of the Notes 


 


65

















 


waive an existing Default or
Event of Default and its consequences under this Indenture, except a continuing
Default or Event of Default in the payment of the principal of, premium, if
any, or interest on, the Notes.  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 hereof;
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 or exercising any
trust or power conferred on it.  However,
the Trustee may refuse to follow any direction that conflicts with the law or
this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in personal
liability.


 


SECTION 6.06.                  Limitation on
Suits.


 


A Holder of a Note may pursue a remedy with respect
to this Indenture or the Notes only if


 


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


 


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


 


(c)           such Holder of
a Note or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;


 


(d)           the Trustee
does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and


 


(e)           during such
60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.


 


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


 


SECTION 6.07.                    Rights of
Holders of Notes To Receive Payment.


 


Notwithstanding any other provision hereof, the
right of any Holder of a Note to receive payment of principal, premium, if any,
and interest on 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 the
Holder of the Note.


 


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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 Issuer
for the whole amount of principal of, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


SECTION 6.09.                      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 Issuer (or any other obligor upon the Notes), the Issuer’s
creditors or the Issuer’s property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder of a Note 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 of the Notes, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. 
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Notes 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 of a Note any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder of a Note thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder of a Note in any such proceeding.


 


SECTION 6.10.                      Priorities.


 


If the Trustee collects any money pursuant to this Article 6,
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, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


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


 


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kind, according to the
amounts due and payable on the Notes for principal, premium, if any and
interest, respectively; and Third:  to
the Issuer or to such party as a court of competent jurisdiction shall direct
in writing.


 


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


 


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 and expenses, 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 pursuant to
this Article 6.


 


ARTICLE 7


 


TRUSTEE


 


SECTION 7.01.                    Duties of
Trustee.


 


(a)           If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent Person would exercise or use under the
circumstances in the conduct of his or her 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 hereof and the Trustee
need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and


 


(ii)     in the absence of bad faith
on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements hereof.  However, in the
case of certificates or opinions specifically required by any provision hereof
to be furnished to it, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements hereof but need 


 


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not
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein.


 


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


 


(i)            this paragraph
does not limit the effect of paragraph (b) of this Section 7.01;


 


(ii)           the Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved 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 hereof that in any way relates to the
Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.


 


(e)           No provision hereof shall
require the Trustee to expend or risk its own funds or incur any
liability.  The Trustee shall be under no
obligation to exercise any of its rights or powers under this Indenture at the
request of any Holders of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to the Trustee against any loss,
liability or expense.


 


(f)            The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Issuer.  Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.


 


SECTION 7.02.                      Rights of
Trustee.


 


(a)           The Trustee may conclusively
rely upon any document (whether in original or facsimile form) believed by it
to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or
matter stated in the document.


 


(b)           Before the Trustee acts or
refrains from acting, it may require an Officers’ Certificate or an Opinion of
Counsel or both.  The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.


 


(c)           The Trustee may act through
its attorneys and agents and shall not be responsible for the misconduct or
negligence of any agent 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 which it believes
to be authorized or within its rights or powers conferred upon it by this
Indenture.


 


(e)           Unless otherwise
specifically provided in this Indenture, any demand, request, direction or
notice from an Issuer shall be sufficient if signed by an Officer of such
Issuer.


 


(f)            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)           Except with respect to Section 4.01
hereof, the Trustee shall have no duty to inquire as to the performance of the
Issuer’s covenants in Article 4.  In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to
Sections 4.01(a), 6.01(a) and 6.01(b) hereof or (ii) any Default
or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.


 


(h)           The rights, privileges,
protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder;


 


(i)            The Trustee may request that
the Issuer deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture; and


 


(j)            In no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss
or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.


 


SECTION 7.03.                      Individual
Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the Issuer
or any Affiliate of the Issuer with the same rights it would have if it were
not Trustee.  However, in the event that
the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee
(if any of the Notes are registered pursuant to the Securities Act), 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.


 


(a)           The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy
hereof or the Notes, it shall not be accountable for the Issuer’s use of the 


 


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proceeds from the Notes or any money paid to
the Issuer or upon the Issuer’s direction under any provision hereof, 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.


 


(b)           The Trustee shall not be
bound to make any investigation into facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document.


 


SECTION 7.05.                  Notice of
Defaults.


 


If a Default or Event of Default occurs and is
continuing and if it is known to a Responsible Officer of 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, 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.


 


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


 


Within 60 days after each May 15 beginning with
May 15, 2009, 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).  The Trustee shall also transmit
by mail all reports as required by TIA § 313(c).


 


A copy of each report at the time of its mailing to
the Holders of Notes shall be mailed to the Issuer and filed with the
Commission and each stock exchange on which any Notes are listed.  The Issuer shall promptly notify the Trustee
in writing when any Notes are listed on any stock exchange or any delisting
thereof.


 


SECTION 7.07.                  Compensation
and Indemnity.


 


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


 


The Issuer shall indemnify the Trustee against any
and all losses, liabilities, claims, damages or expenses incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, except any such loss, liability or expense as shall be
determined to have been caused by the negligence or willful misconduct of the
Trustee.  The Trustee shall notify the
Issuer promptly of any claim of which a Responsible Officer has received
written notice for which it may seek indemnity. 
Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder.  The
Issuer shall defend the claim 


 


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and the Trustee shall
cooperate in the defense.  The Trustee
may have separate counsel and the Issuer shall pay the reasonable fees and
expenses of such counsel.  The Issuer
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.


 


The obligations of the Issuer under this Section 7.07
shall survive the satisfaction and discharge hereof.


 


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


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(j) or (k) 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.


 


SECTION 7.08.                  Replacement of
Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in this Section 7.08.


 


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


 


(a)           the Trustee fails to comply
with Section 7.10 hereof;


 


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


 


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


 


(d)           the Trustee becomes
incapable of acting.


 


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


 


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


 


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If the Trustee after written request by any Holder
of a Note who has been a Holder of a Note for at least six months fails to
comply with Section 7.10 hereof, such Holder of a Note may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Issuer.  Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of
its succession to Holders of the Notes. 
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all
sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. 
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Issuer’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.


 


If a Trustee is removed without cause, all fees and
expenses of the Trustee incurred in the administration of the trust or in the
performance of the duties hereunder shall be paid to the Trustee.


 


SECTION 7.09.                      Successor
Trustee by Merger, Etc.


 


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


 


SECTION 7.10.                      Eligibility;
Disqualification.


 


There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the
United States of America or of any state thereof authorized under such laws to
exercise corporate trustee power, shall be subject to supervision or
examination by federal or state authority and shall have a combined capital and
surplus of at least $25 million as set forth in its most recent published
annual report of condition.


 


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


 


SECTION 7.11.                      Preferential
Collection of Claims Against Issuer.


 


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.


 


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ARTICLE 8


 


DISCHARGE OF INDENTURE;
DEFEASANCE


 


SECTION 8.01.                    Termination of
the Issuer’s Obligations.


 


(a)           The Issuer may terminate its
Obligations as to all outstanding Notes, except those obligations referred to
in paragraph (b) of this Section 8.01, when


 


(1)     either:


 


(a)           all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been replaced or
paid and Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust) have been delivered to the Trustee for
cancellation; or


 


(b)           all Notes not theretofore delivered to the Trustee
for cancellation have become due and payable or, within one year will become
due and payable or subject to redemption as set forth in Section 3.07 and
the Issuer has irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire Indebtedness on
the Notes not theretofore delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on the Notes to the date of deposit
together with irrevocable instructions from the Issuer directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as the case
may be;


 


(2)     the Issuer has paid all other sums payable under
this Indenture by the Issuer; and


 


(3)     the Issuer has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent
under this Indenture relating to the satisfaction and discharge hereof have
been complied with; provided, however, that such counsel may rely, as to matters of fact,
on a certificate or certificates of Officers of the Issuer.


 


(b)           Notwithstanding paragraph (a) of
this Section 8.01, the Issuer’s obligations in Sections 2.03, 2.04, 2.05,
2.06, 7.07, 7.08, 8.07 and 8.08 hereof shall survive until the Notes are no
longer outstanding pursuant to Section 2.08 hereof.  After the Notes are no longer outstanding,
the Issuer’s obligations in Sections 7.07, 7.08, 8.07 and 8.08 hereof shall
survive such satisfaction and discharge.


 


SECTION 8.02.                    Option To
Effect Legal Defeasance or Covenant Defeasance.


 


The Issuer may, at the option of its Board of
Directors evidenced by a resolution set forth in an Officers’ Certificate, at
any time, with respect to the Notes, elect to have either Section 


 


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8.03 or 8.04 hereof applied
to all outstanding Notes upon compliance with the conditions set forth below in
this Article 8.


 


SECTION 8.03.                      Legal
Defeasance and Covenant Discharge.


 


Upon the Issuer’s exercise under Section 8.02
hereof of the option applicable to this Section 8.03, the Issuer shall be
deemed to have been discharged from their obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).  For this purpose, such Legal Defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.06 hereof
and the other Sections hereof referred to in clauses (a) and (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 Issuer,
shall execute proper instruments acknowledging the same), except for the
following, which shall survive until otherwise terminated or discharged
hereunder:  (a) the rights of
Holders of outstanding Notes to receive payments in respect of the principal
of, premium, if any, and interest on the Notes when such payments are due, or
on the redemption date, as the case may be; (b) the Issuer’s obligations
with respect to such Notes under Sections 2.05, 2.07, 2.08, 2.10, 2.11 and 4.02
hereof; (c) the rights, powers, trust, duties and immunities of the
Trustee hereunder, and the Issuer’s obligations in connection therewith; and (d) this
Section 8.03.  Subject to compliance
with this Article 8, the Issuer may exercise its option under this Section 8.03
notwithstanding the prior exercise of its option under Section 8.04 hereof
with respect to the Notes.


 


SECTION 8.04.                      Covenant
Defeasance.


 


Upon the Issuer’s exercise under Section 8.02
hereof of the option applicable to this Section 8.04, the Issuer shall be
released from its obligations under the covenants contained in Sections 3.08,
4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 (other than
existence of the Issuer (subject to Section 5.01), 4.15, 5.01 (except
clauses (a) and (b)) and 10.03 hereof with respect to the outstanding
Notes on and after the date the conditions set forth below 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 such Notes shall not be deemed outstanding for GAAP).  For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Notes, the Issuer 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(c) hereof, but, except as
specified above, the remainder hereof and such Notes shall be unaffected
thereby.  In addition, upon the Issuer’s
exercise under Section 8.02 hereof of the option applicable to this Section 8.04,
Sections 6.01(c) through 6.01(h) shall not constitute Events of
Default.


 


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SECTION 8.05.                      Conditions to
Legal or Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.03 or Section 8.04 hereof to the
outstanding Notes:


 


(i)    the Issuer shall irrevocably
have deposited with the Trustee, in trust, for the benefit of the Holders of
the Notes, cash in U.S. dollars, noncallable U.S. government obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants selected by the
Trustee, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated maturity or on the applicable optional
redemption date, as the case may be;


 


(ii)   in the case of an election
under Section 8.03 hereof, the Issuer shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the Issue
Date, there has been a change in the applicable federal income tax law, in each
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance, and will
be subject to federal income tax in the same amount, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;


 


(iii)  in the case of
an election under Section 8.04, the Issuer shall have delivered to the
Trustee an Opinion of Counsel reasonably acceptable to such Trustee confirming
that the holders of the Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred;


 


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


 


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


 


(vi)  the Issuer shall have
delivered to the Trustee an Officers’ Certificate stating that the deposit made
by the Issuer pursuant to its election under Section 8.03 and 8.04 hereof
was not made by the Issuer with the intent of preferring the Holders of the
Notes over any of its other creditors or with the intent of defeating,
hindering, delaying or defrauding any of its other creditors or others; and


 


(vii) the Issuer
shall have delivered to the Trustee an Officers’ Certificate stating that all
conditions precedent provided for or relating to the Legal Defeasance under Section 8.03
hereof or the Covenant Defeasance under Section 8.04 hereof (as the case
may be) have been complied with as contemplated by this Section 8.05.


 


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SECTION 8.06.                                                       Deposited
Money and Government Securities To Be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to Section 8.07 hereof, all
money and Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.06,
the “Trustee”) pursuant to Section 8.05
hereof in respect of the outstanding Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent (including an
Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.


 


The Issuer shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash or Government Securities deposited pursuant to Section 8.05 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.


 


Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the request of the Issuer any money or Government Securities held by
it as provided in Section 8.05 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.05(a) hereof), are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.


 


SECTION 8.07.                                                       Repayment
to Issuer.


 


Any money deposited with the Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Issuer on their request or (if then held
by the Issuer) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as a general creditor, look only to the Issuer for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuer as trustees 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 Issuer 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 will be repaid to the Issuer.


 


SECTION 8.08.                                                       Reinstatement.


 


If the Trustee or Paying Agent is unable to
apply any United States Dollars or Government Securities in accordance with Section 8.03
or 8.04 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or 


 


77

















 


otherwise prohibiting such application, then
the Issuer’s obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.03
or 8.04 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.03 or 8.04 hereof, as
the case may be; provided, however,
that, if the Issuer makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its obligations, the Issuer
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.


 


ARTICLE 9


 


AMENDMENT,
SUPPLEMENT AND WAIVER


 


SECTION 9.01.                                                       Without
Consent of Holders of Notes.


 


Notwithstanding Section 9.02 hereof, the
Issuer, the Guarantors and the Trustee may amend or supplement this Indenture,
the Notes and the Guarantees or any amended or supplemental indenture without
the consent of any Holder of a Note:


 


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


 


(b)                                 to
provide for uncertificated Notes or Guarantees in addition to or in place of
certificated Notes or Guarantees (provided that
the uncertificated Notes are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code);


 


(c)                                  to
provide for the assumption of the obligations of the Issuer or any Guarantor to
the Holders of the Notes in the case of a merger or consolidation pursuant to Article 5
or Article 10 hereof;


 


(d)                                 to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the rights hereunder of
any Holder of the Notes;


 


(e)                                  to
provide for the issuance of additional Notes in accordance with the provisions
set forth in this Indenture;


 


(f)                                    to
evidence and provide for the acceptance of an appointment of a successor
Trustee;


 


(g)                                 to
add Guarantees with respect to the Notes;


 


(h)                                 to
conform the Indenture or the Notes to the “Description of Notes” section in the
Offering Memorandum; or


 


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(i)                                     to
comply with requirements of the Commission in order to effect or maintain the
qualification hereof under the TIA.


 


Upon the request of the Issuer accompanied by
a resolution of the Board of Directors of the Issuer and a resolution of the
Board of Directors of each Guarantor and upon receipt by the Trustee of the
documents described in Section 11.04 hereof, the Trustee shall join with
the Issuer and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms hereof and shall make any
further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.


 


SECTION 9.02.                                                       With
Consent of Holders of Notes.


 


The Issuer, the Guarantors and the Trustee
may amend or supplement this Indenture, the Notes or the Guarantees or any
amended or supplemental indenture with the written consent of the Holders of at
least a majority of the aggregate principal amount of Notes then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Notes), and any existing Default and its consequences or
compliance with any provision hereof or the Notes may be waived with the
consent of the Holders of a majority of the aggregate principal amount of Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for the Notes).  Notwithstanding
the foregoing, without the consent of each Holder affected, an amendment or
waiver may not (with respect to any Notes held by a non-consenting Holder):


 


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


 


(b)                                 reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes (other than as provided
in clause (h) below);


 


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


 


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


 


(e)                                  make
any Note payable in money other than that stated in the Notes (other than as
provided in clause (h) below);


 


(f)                                    make
any change in the provisions hereof relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal of or interest on
the Notes;


 


(g)                                 waive
a redemption payment with respect to any Note;


 


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(h)                                 amend,
change or modify in any material respect the obligation of the Issuer to make
and consummate a Change of Control Offer in the event of a Change of Control
after such Change of Control has occurred;


 


(i)                                     release
all or substantially all of the Guarantees of the Guarantors other than in
accordance with Article 10; or


 


(j)                                     make
any change in the foregoing amendment and waiver provisions.


 


Upon the request of the Issuer accompanied by
a resolution of the Board of Directors of the Issuer and a resolution of the
Board of Directors of each Guarantor, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 11.04
hereof, the Trustee shall join with the Issuer and the Guarantors in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.


 


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


 


After an amendment, supplement or waiver
under this Section 9.02 becomes effective, the Issuer shall mail to the
Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver.  Any failure of the
Issuer 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
Notes then outstanding may waive compliance in a particular instance by the
Issuer with any provision of this Indenture or of the Notes.


 


SECTION 9.03.                                                       Compliance
with Trust Indenture Act.


 


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


 


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The Issuer may fix a record date for
determining which Holders of the Notes must consent to such amendment,
supplement or waiver.  If the Issuer
fixes a record date, the record date shall be fixed at (i) the later of 30
days prior to the first solicitation of such consent or the date of the most
recent list of Holders of Notes furnished to the Trustee prior to such
solicitation pursuant to Section 2.05 hereof or (ii) such other date
as the Issuer shall designate.


 


SECTION 9.05.                                                       Notation
on or Exchange of Notes.


 


The Trustee may place an appropriate notation
about an amendment, supplement or waiver on any Note thereafter
authenticated.  The Issuer in exchange
for all Notes may issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.


 


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


 


SECTION 9.06.                                                       Trustee
To Sign Amendments, Etc.


 


In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or
the modification thereby of the trusts created by this Indenture, the Trustee
shall receive, and shall by fully protected in relying upon, an Opinion of
Counsel and an Officers’ Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


ARTICLE 10


 


GUARANTEES


 


SECTION 10.01.                                                 Guarantee.


 


Each of the Guarantors, jointly and
severally, hereby 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 Issuer hereunder or thereunder,
that


 


(a)                                  the
principal of, premium, if any, and interest on the Notes will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other Obligations of the Issuer to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and


 


(b)                                 in
case of any extension of time of payment or renewal of any Notes or any of such
other Obligations, that the same will be promptly paid in full when due or 


 


81

















 


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, each of the Guarantors, jointly and severally, will be
obligated to pay the same immediately.


 


Each of the Guarantors, jointly and
severally, hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of a Note with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuer, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.


 


Each of the Guarantors, jointly and
severally, hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the Obligations guaranteed hereby.  If any Holder or the Trustee is required by
any court or otherwise, or any custodian, Trustee, liquidator or other similar
official acting in relation to either the Issuer or any Guarantor, to return to
the Issuer or any Guarantor any amount paid by either to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.


 


Each of the Guarantors, jointly and severally,
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 of the Guarantors, jointly and severally, further agrees that, as
between such Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the Obligations guaranteed hereby may
be accelerated as provided in Article 6 for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee.  Notwithstanding the
foregoing, in the event that any Guarantee would constitute or result in a violation
of any applicable fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of the applicable Guarantor under its Guarantee
shall be reduced to the maximum amount permissible under such fraudulent
conveyance or similar law.


 


The Guarantors hereby agree as among themselves
that each Guarantor that makes a payment or distribution under a Guarantee
shall be entitled to a pro rata
contribution from each other Guarantor hereunder based on the net assets of
each other Guarantor.  The preceding
sentence shall in no way affect the rights of the Holders of Notes to the
benefits hereof, the Notes or the Guarantees.


 


Nothing in this Section 10.01 shall
apply to claims of, or payments to, the Trustee under or pursuant to the
provisions of Section 7.07 hereof. 
Nothing contained in this Section 10.01 or elsewhere in this
Indenture, the Notes or the Guarantees shall impair, as between any Guarantor
and the Holder of any Note, the obligation of such Guarantor, which is
unconditional and 


 


82

















 


absolute, to pay to the Holder thereof the
principal of, premium, if any, and interest on such Notes in accordance with
their terms and the terms of the Guarantee and this Indenture, nor shall
anything herein or therein prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law or hereunder or
thereunder upon the occurrence of an Event of Default.


 


SECTION 10.02.                                                 Execution
and Delivery of Guarantees.


 


To evidence its Guarantee set forth in Section 10.01
hereof, each Guarantor hereby agrees that a notation of such Guarantee
substantially in the form of Exhibit B hereto shall be endorsed by
an officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of such Guarantor
by any of its Officers.  Each of the
Guarantors, jointly and severally, hereby agrees that its Guarantee set forth
in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.  If an officer or Officer
whose signature is on this Indenture or on the Guarantee of a Guarantor no
longer holds that office at the time the Trustee authenticates the Note on
which the Guarantee of such Guarantor is endorsed, the Guarantee of such
Guarantor shall be valid nevertheless. 
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantees set forth in
this Indenture on behalf of the Guarantors.


 


SECTION 10.03.                                                 Merger,
Consolidation or Sale of Assets of Guarantors.


 


Subject to Section 10.05 hereof, a
Guarantor may not, and the Issuer will not cause or permit any Guarantor to,
consolidate or merge with or into (whether or not such Guarantor is the
surviving entity), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets in one or more
related transactions to, another Person other than the Issuer or another
Guarantor (in each case other than in accordance with Section 4.10)
unless:


 


(a)                                  such
Guarantor is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation, limited partnership or limited liability company
organized or existing under the laws of the United States, any state thereof or
the District of Columbia;


 


(b)                                 the
Person formed by or surviving any such consolidation or merger (if other than
the Guarantor) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the
obligations of the Guarantor, pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, under the Notes and this Indenture; and


 


(c)                                  immediately
after such transaction, no Default or Event of Default exists.


 


Nothing contained in this Indenture shall
prevent any consolidation or merger of a Guarantor with or into the Issuer or
another Guarantor that is a wholly owned Restricted Subsidiary of the Issuer or
shall prevent any sale or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety to the Issuer or another Guarantor
that is a wholly 


 


83

















 


owned Restricted Subsidiary of the
Issuer.  Except as set forth in Articles
4 and 5 hereof, nothing contained in this Indenture shall prevent any
consolidation or merger of a Guarantor with or into the Issuer or another
Guarantor that is a Restricted Subsidiary of the Issuer or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Issuer or another Guarantor that is a
Restricted Subsidiary of the Issuer.


 


SECTION 10.04.                                                 Successor
Corporation Substituted.


 


Upon any consolidation, merger, sale or
conveyance described in paragraphs (a) through (c) of Section 10.03
hereof, and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of any Guarantee previously signed by the Guarantor and the due
and punctual performance of all of the covenants and conditions hereof to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.  Such successor
Person thereupon may cause to be signed any or all of the Guarantees to be
issuable hereunder by such Guarantor and delivered to the Trustee.  All the Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms
hereof as though all of such Guarantees had been issued at the date of the
execution of such Guarantee by such Guarantor. 
When a successor Person assumes all the obligations of the Issuer under
the Notes and the Indenture pursuant to this Article 5, the applicable
predecessor shall be released from the obligations so assumed.


 


SECTION 10.05.                                                 Releases
from Guarantees.


 


If pursuant to any direct or indirect sale of
assets (including, if applicable, all of the Capital Stock of any Guarantor) or
other disposition by way of merger, consolidation or otherwise, the assets sold
include all or substantially all of the assets of any Guarantor or all of the
Capital Stock of any such Guarantor, then such Guarantor or the Person
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such a Guarantor) shall be released and
relieved of its obligations under its Guarantee or Section 10.03 and Section 10.04
hereof, as the case may be; provided that in
the event of an Asset Sale, the Net Proceeds from such sale or other
disposition are applied in accordance with the provisions of Section 4.10
hereof.  In addition, a Guarantor shall
be released and relieved of its obligations under its Guarantee or Section 10.03
and Section 10.04 hereof, as the case may be if (1) such Guarantor is
dissolved or liquidated in accordance with the provisions hereof; (2) the
Issuer designates any such Guarantor as an Unrestricted Subsidiary in
compliance with the terms hereof; or (3) the Issuer effectively discharges
such Guarantor’s obligations or defeases the Notes in compliance with the terms
of Article 8 hereof.  Upon delivery
by the Issuer to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the
Issuer in accordance with the provisions hereof, including without limitation Section 4.10
hereof, if applicable, the Trustee shall execute any documents pursuant to
written direction of the Issuer in order to evidence the release of any such
Guarantor from its obligations under its Guarantee.  Any such Guarantor not released from its
obligations under its 


 


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Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the other obligations
of such Guarantor under this Indenture as provided in this Article 10.


 


ARTICLE 11


 


MISCELLANEOUS


 


SECTION 11.01.                                                 Trust
Indenture Act Controls.


 


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


 


SECTION 11.02.                                                 Notices.


 


Any notice or communication by the Issuer,
any Guarantor or the Trustee to the others is duly given if in writing and
delivered by hand-delivery, registered first-class mail, next-day air courier
or facsimile:


 


If to the Issuer or any Guarantor, to it care
of:


 


Interval Acquisition Corp.


6262 Sunset Drive


Miami, FL 33143


Attention: General Counsel


 


If to the Trustee:


The Bank of New York Mellon.


101 Barclay Street, Floor 8W


New York, NY 10286


Facsimile No.: 212-815-5704


Attention: 
Corporate Trust Administration


 


The Issuer, any Guarantor or the Trustee, by
notice to the other, may designate additional or different addresses for
subsequent notices or communications.


 


All notices and communications (other than
those sent to Holders of Notes) shall be deemed to have been duly given:  when delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, certified or
registered, return receipt requested, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when
transmission is confirmed, if sent by facsimile.


 


Any notice or communication to a Holder of a
Note shall be mailed by first class mail 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 


 


85

















 


to mail a notice or communication to a Holder
of a Note or any defect in it shall not affect its sufficiency with respect to
other Holders of Notes.


 


If a notice or communication is mailed in the
manner provided above within the time prescribed, it is duly given, whether or
not the addressee receives it.


 


If the Issuer mails a notice or communication
to Holders of Notes, it shall mail a copy to the Trustee and each Agent at the
same time.


 


The Trustee agrees to accept and act upon
facsimile and electronic mail transmission of written instructions and/or
directions pursuant to this Indenture given by the Issuer, provided,
however that:  (i) the Issuer, subsequent to such
facsimile or electronic mail transmission of written instructions and/or
directions, shall provide the originally executed instructions and/or
directions to the Trustee in a timely manner and (ii) such originally
executed instructions and/or directions shall be signed by an authorized “Officer”
of the Issuer.


 


SECTION 11.03.                                                 Communication
by Holders of Notes with Other Holders of Notes.


 


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


 


SECTION 11.04.                                                 Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or application by the Issuer
to the Trustee to take any action under this Indenture (except in connection
with the original issuance of the Notes), the Issuer shall furnish to the
Trustee:


 


(a)                                  an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee 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
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.


 


SECTION 11.05.                                                 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)) , if applicable; shall
include:


 


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


 


86

















 


(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.


 


SECTION 11.06.                                                 Rules by
Trustee and Agents.


 


The Trustee may make reasonable rules for
action by or at a meeting of Holders of Notes. 
The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.


 


SECTION 11.07.                                                 No
Personal Liability of Directors, Owners, Employees, Incorporators and
Stockholders.


 


No director, owner, officer, employee,
incorporator or stockholder of the Issuer, the Guarantors or any of their
Affiliates, as such, shall have any liability for any obligations of the
Issuer, the Guarantors or any of their Affiliates under the Notes, the
Guarantees or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder 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.


 


SECTION 11.08.                                                 Governing
Law.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


SECTION 11.09.                                                 No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be used to interpret
another indenture, loan or debt agreement of the Issuer or any of its
respective Subsidiaries.  Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


SECTION 11.10.                                                 Successors.


 


All agreements of the Issuer and the
Guarantors in this Indenture and the Notes and the Guarantees shall bind the
successors of the Issuer and the Guarantors, respectively.  All agreements of the Trustee in this
Indenture shall bind its successor.


 


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SECTION 11.11.                                                 Severability.


 


In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


SECTION 11.12.                                                 Counterpart
Originals.


 


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


 


SECTION 11.13.                                                 Table
of Contents, Headings, Etc.


 


The Table of Contents, Cross-Reference Table
and headings of the Articles and Sections hereof have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.


 


SECTION 11.14.                                                 Force
Majeure.


 


In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


SECTION 11.15.                                                 Waiver
of Jury Trial.


 


EACH OF THE ISSUER AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


[Signatures on following page]


 


88
















 


IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed as of the day and year first above
written.


 


	
   

  	
  INTERVAL ACQUISITION CORP.

  
	
   

  	
  as Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig M. Nash

  
	
   

  	
   

  	
  Name:  Craig M. Nash

  
	
   

  	
   

  	
  Title:    President and
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WORLDEX CORPORATION,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig M. Nash

  
	
   

  	
   

  	
  Name:  Craig M. Nash

  
	
   

  	
   

  	
  Title:    President and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  IIC HOLDINGS, INCORPORATED,

  
	
   

  	
  INTERVAL EUROPEAN HOLDINGS LIMITED,

  
	
   

  	
  INTERVAL HOLDINGS, INC.,

  
	
   

  	
  INTERVAL INTERNATIONAL HOLDINGS,

  INC.,

  
	
   

  	
  INTERVAL INTERNATIONAL OVERSEAS

  HOLDINGS, INC.,

  
	
   

  	
  INTERVAL SOFTWARE SERVICES, LLC,

  
	
   

  	
  INTERVAL VACATION EXCHANGE, INC.,

  
	
   

  	
  XYZII, INC.,

  
	
   

  	
  as Guarantors

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig M. Nash

  
	
   

  	
   

  	
  Name:  Craig M. Nash

  
	
   

  	
   

  	
  Title:    President

  
	
   

  	
   

  
	
   

  	
  INTERVAL INTERNATIONAL, INC.,

  
	
   

  	
  INTERVAL RESORT & FINANCIAL SERVICES,

  INC.,

  
	
   

  	
  REP HOLDINGS, LTD.,

  
	
   

  	
  VACATION HOLDINGS HAWAII, INC.,

  
	
   

  	
  WORLDWIDE VACATION & TRAVEL, INC.,

  
	
   

  	
  as Guarantors

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig M. Nash

  
	
   

  	
   

  	
  Name:  Craig M. Nash

  
	
   

  	
   

  	
  Title:    Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  MERAGON FINANCIAL SERVICES, INC.,

  
	
   

  	
  as Guarantor

  



 


89

















 


	
   

  	
  By:

  	
  /s/ Gregory Sheperd

  
	
   

  	
   

  	
  Name:  Gregory Sheperd

  
	
   

  	
   

  	
  Title:    President

  
	
   

  	
   

  
	
   

  	
  MERIDIAN FINANCIAL SERVICES, INC.,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeanette E. Marbert

  
	
   

  	
   

  	
  Name:  Jeanette E. Marbert

  
	
   

  	
   

  	
  Title:    Executive
  Vice President

  
	
   

  	
   

  
	
   

  	
  RESORTQUEST HAWAII, LLC,

  
	
   

  	
  RESORTQUEST REAL ESTATE OF HAWAII,

  LLC,

  
	
   

  	
  RQI HOLDINGS, LLC,

  
	
   

  	
  as Guarantors

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John A. Galea

  
	
   

  	
   

  	
  Name:  John A. Galea

  
	
   

  	
   

  	
  Title:    Manager

  



 


90

















 


EXHIBIT A


 


[Face of Note]


9.5% Senior Note due 2016


 


Cert. No.

CUSIP No. (a)


 


Interval Acquisition Corp.


 


promises to pay to
[                      ]


 


or its registered assigns


 


the principal sum of


 


Dollars on September 1,
2016


 


Interest Payment Dates:  March 1 and September 1, commencing
March 1, 2009.


 


Record Dates:  February 15 and August 15 (whether
or not a Business Day).


 


IN WITNESS WHEREOF, the Issuer has caused
this Note to be duly executed.


 


Dated:


 


	
   

  	
  INTERVAL ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the Notes referred to in

the within-mentioned Indenture:


 


THE BANK OF NEW YORK MELLON, as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
				



 






(a)                                  At
such time as the Issuer notifies the Trustee to remove the Private Placement
Legend pursuant to the terms of the Indenture, the CUSIP number for this Note
shall be deemed to be CUSIP No.  [                         ]


 


A-1

















 


(Back of Note)


 


Capitalized terms used herein have the
meanings assigned to them in the Indenture (as defined below) unless otherwise
indicated.


 


(1)        Interest.  Interval
Acquisition Corp., a Delaware Corporation (the “Issuer”)
promises to pay interest on the principal amount of this Note at the rate and
in the manner specified below.  Interest
will accrue at 9.5% per annum and will be payable semi-annually in cash on each
March 1 and September 1, commencing March 1, 2009, or if any
such day is not a Business Day on the next succeeding Business Day (each, an “Interest Payment Date”) to Holders of record of the Notes at
the close of business on the immediately preceding February 15 and August 15,
whether or not a Business Day.  Interest
will be computed on the basis of a 360-day year consisting of twelve 30-day
months.  Interest shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance. 
To the extent lawful, the Issuer shall pay interest on overdue principal
at the rate of the then applicable interest rate on the Notes; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) at the same rate to the extent lawful.  In addition, Holders may be entitled to the
benefits of certain provisions of the Registration Rights Agreement.


 


(2)        Method of Payment. 
The Issuer shall pay interest on the Notes (except defaulted interest)
to the Persons who are registered Holders of Notes at the close of business on
the record date next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date.  The Holder hereof must surrender this
Note to a Paying Agent to collect principal payments.  The Issuer will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts.  The
Notes will be payable both as to principal and interest at the office or agency
of the Issuer maintained for such purpose or, at the option of the Issuer,
payment of interest may be made by check mailed to the Holders of Notes at
their respective addresses set forth in the register of Holders of Notes.  Unless otherwise designated by the Issuer,
the Issuer’s office or agency will be the office of the Trustee maintained for
such purpose.


 


(3)        Paying Agent and Registrar. 
Initially, the Trustee will act as Paying Agent and Registrar.  The Issuer may change any Paying Agent,
Registrar or co-registrar without prior notice to any Holder of a Note.  The Issuer may act in any such capacity.


 


(4)        Indenture.  The Issuer
issued the Notes under an Indenture, dated as of August 19, 2008 (the “Indenture”), among the Issuer, the Guarantors and the
Trustee.  This is one of an issue of
Notes of the Issuer issued, or to be issued, under the Indenture.  The Issuer shall be entitled to issue
additional Notes pursuant to Section 2.02 of the Indenture.  All Notes issued under the Indenture shall be
treated as a single class of Notes under the Indenture.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as in effect
on the date of the Indenture.  The Notes
are subject to all such terms, and Holders of Notes are referred to the
Indenture and such act for a statement of such terms.  The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes.  The Notes are senior unsecured obligations of
the Issuer.


 


A-2

















 


(5)        Optional Redemption. 
The Notes will not be redeemable prior to September 1, 2012.  Thereafter, the Notes will be subject to
redemption at the option of the Issuer, in whole or in part, upon not less than
30 days’ or more than 60 days’ notice, at 100% of the aggregate principal
amount of the Notes to be redeemed, together with accrued and unpaid interest
to such redemption date.


 


(6)        Repurchase at Option of Holder.  Upon the occurrence of a Change of Control,
the Issuer shall make an offer to each Holder of Notes to repurchase on the
Change of Control Payment Date all or any part of such Holder’s Notes (equal to
$1,000 or an integral multiple thereof) at a purchase price equal to 101% of
the aggregate principal amount thereof, together with accrued and unpaid
interest thereon to the date of repurchase (subject to the right of Holders on
the relevant record date to receive interest due on the relevant interest
payment date).  Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Issuer prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled “Option of Holder To
Elect Purchase” appearing below.


 


When the cumulative amount of Excess Proceeds
that have not been applied in accordance with Section 4.10 of the
Indenture exceeds $25.0 million, the Issuer shall make an offer to all Holders
of the Notes (an “Excess  Proceeds
Offer”) to purchase the maximum
principal amount of Notes that may be purchased out of such Excess Proceeds at
an offer price in cash in an amount equal to 100% of the principal amount
thereof, together with accrued and unpaid interest to the date fixed for the
closing of such offer in accordance with the procedures set forth in the
Indenture.  To the extent the Issuer or a
Restricted Subsidiary is required under the terms of Indebtedness of the Issuer
or such Restricted Subsidiary (other than Subordinated Indebtedness), the
Issuer shall also make a pro rata offer to the holders of such Indebtedness
(including the Notes) with such proceeds. 
If the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof
exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes
and other pari passu Indebtedness to be purchased
on a pro rata basis.  To the extent that
the principal amount of Notes tendered pursuant to an Excess Proceeds Offer is
less than the amount of such Excess Proceeds, the Issuer may use any remaining
Excess Proceeds for general corporate purposes in compliance with the
provisions of the Indenture.  Upon
completion of an Excess Proceeds Offer, the amount of Excess Proceeds shall be
reset at zero.  Holders of Notes that are
subject to an offer to purchase will receive a Excess Proceeds Offer from the
Issuer prior to any related Purchase Date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder To Elect Purchase”
appearing below.


 


(7)        Notice of Redemption. 
Notice of redemption shall be mailed at least 30 days but not more than
60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. 
Notes may be redeemed in part but only in amounts of $2,000 or whole
multiples of $1,000 that are equal to or in excess of $2,000, unless all of the
Notes held by a Holder of Notes are to be redeemed.  On and after the redemption date, interest
ceases to accrue on Notes or portions of them called for redemption unless the
Issuer fails to redeem such Notes or such portions thereof.


 


A-3

















 


(8)        Suspension of Covenants. 
During any period of time after the Issue Date that (i) the Notes
are rated Investment Grade by both Rating Agencies and (ii) no Default has
occurred and is continuing under the Indenture, the Issuer and its Restricted
Subsidiaries will not be subject to Sections 3.08 (Excess Proceeds Offer), 4.07
(Limitation on Restricted Payments), 4.08 (Limitation on Dividend and Other
Payment Restrictions Affecting Restricted Subsidiaries, 4.09 (Limitation on
Incurrence of Indebtedness), 4.10 (Limitation on Asset Sales), 4.11 (Limitation
on Transactions with Affiliates) and clause (d) of the first paragraph of Section 5.01
(Merger, Consolidation or Sale of Assets).


 


(9)        Denominations, Transfer, Exchange.  The Notes are in registered form without coupons
in denominations of $2,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a
Holder of a Note, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture.  The Registrar need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption.  Also, it need not exchange
or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed.


 


(10)      Persons Deemed Owners. 
Prior to due presentment to the Trustee for registration of the transfer
of this Note, the Trustee, any Agent and the Issuer may deem and treat the
Person in whose name this Note is registered as its absolute owner for the
purpose of receiving payment of principal of, premium, if any, and interest on
this Note and for all other purposes whatsoever, whether or not this Note is
overdue, and neither the Trustee, any Agent nor the Issuer shall be affected by
notice to the contrary.  The registered
Holder of a Note shall be treated as its owner for all purposes.


 


(11)      Amendments, Supplement and Waivers.  Subject to certain exceptions, the Indenture,
the Notes and the Guarantees or any amended or supplemental indenture may be
amended or supplemented with the written consent of the Holders of at least a
majority of the aggregate principal amount of Notes then outstanding (including
consents obtained in connection with a tender offer or Exchange Offer for the
Notes), and any existing Default and its consequences or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority of the aggregate principal amount of Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes). 
Notwithstanding the foregoing, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder of Notes) (a) reduce the principal amount of Notes
whose Holders must consent to an amendment, supplement or waiver; (b) reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes (other than as provided
in clause (h) below); (c) reduce the rate of or change the time for
payment of interest on any Note; (d) waive a Default or Event of Default
in the payment of principal of or premium, if any, or interest on the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration); (e) make
any Note payable in money other than that stated in the Notes; (f) make
any change in the provisions of the Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of
or interest on the Notes; (g) waive a redemption payment with respect to
any Note (other than as 


 


A-4

















 


provided in
clause (h) below); (h) amend, change or modify in any material
respect the obligation of the Issuer to make and consummate a Change of Control
Offer in the event of a Change of Control after such Change of Control has
occurred; (i) release all or substantially all of the Guarantees of the
Guarantors other than in accordance with Article 10 of the Indenture; or (j) make
any change in the foregoing amendment and waiver provisions.  Notwithstanding the foregoing, without the
consent of any Holder of a Note, the Indenture, the Notes, the Guarantees, or
any amended or supplemental indenture may be amended or supplemented:  to cure any ambiguity, defect or
inconsistency; to provide for uncertificated Notes or Guarantees in addition to
or in place of certificated Notes or Guarantees; to provide for the assumption
of the obligations of the Issuer or any Guarantor to the Holders of the Notes
in the case of a merger or consolidation pursuant to Article 5 or Article 10
of the Indenture; to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the
rights under the Indenture of any Holder of the Notes; to provide for the
issuance of additional Notes in accordance with the provisions set forth in the
Indenture; to evidence and provide for the acceptance of an appointment of a
successor Trustee; to add Guarantees with respect to the Notes; to conform the
Indenture or the Notes to the “Description of Notes” section in the Offering
Memorandum; or to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act.


 


(12)      Defaults and Remedies. 
Each of the following constitutes an Event of Default:


 


(a)           default for 30 days in the payment when due of interest or
additional interest, if any, on the Notes;


 


(b)           default in payment when due of principal of or premium, if
any, on the Notes at maturity, upon repurchase, redemption or otherwise;


 


(c)           failure to comply with the provisions described under
Sections 3.08 and 5.01 of the Indenture;


 


(d)           failure to comply for 30 days after notice with any
obligations under the provisions described under Sections 4.10 and 4.15 of the
Indenture (other than a failure to purchase Notes duly tendered to the Issuer
for repurchase pursuant to a Change of Control Offer or an Excess Proceeds
Offer);


 


(e)           subject to the last paragraph of Section 6.02 of the
Indenture, default under any other provision of the Indenture or the Notes,
which default remains uncured for 60 days after notice from the Trustee or the
Holders of at least 25% of the aggregate principal amount then outstanding of
the Notes;


 


(f)            default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Issuer and any of the Restricted
Subsidiaries (or the payment of which is guaranteed by the Issuer and any of
the Restricted Subsidiaries), which default is caused by a failure to pay the
principal of such Indebtedness at the final stated maturity thereof within the grace
period provided in such Indebtedness (a “Payment Default”),
and the principal amount of any such Indebtedness, together with the principal
amount of any 


 


A-5

















 


other such
Indebtedness under which there has been a Payment Default, aggregates $25.0
million or more;


 


(g)           default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Issuer and any of the Restricted
Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its
Restricted Subsidiaries), which default results in the acceleration of such
Indebtedness prior to its express maturity not rescinded or cured within 30
days after such acceleration, and the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated and remains undischarged after such 30 day period, aggregates
$25.0 million or more;


 


(h)           failure by the Issuer and any of the Restricted
Subsidiaries to pay final judgments (other than any judgment as to which a
reputable insurance company has accepted full liability) aggregating $25.0
million or more, which judgments are not stayed within 60 days after their
entry;


 


(i)            any Guarantee of a Significant Subsidiary shall be held
in a judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect, or any Guarantor that qualifies as a
Significant Subsidiary, or any Person acting on behalf of any Guarantor that
qualifies as a Significant Subsidiary, shall deny or disaffirm its obligations
under its Guarantee;


 


(j)            the Issuer or any Significant Subsidiary of the Issuer
pursuant to or within the meaning of Bankruptcy Law (i) commences a
voluntary case; (ii) consents to the entry of an order for relief against
it in an involuntary case; (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; and


 


(k)           a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:  (i) is
for relief against the Issuer or any Significant Subsidiary of the Issuer in an
involuntary case; (ii) appoints a custodian of the Issuer or any
Significant Subsidiary of the Issuer or for all or substantially all of the
property of the Issuer or any Significant Subsidiary of the Issuer; or (iii) orders
the liquidation of the Issuer or any Significant Subsidiary of the Issuer, and
the order or decree remains unstayed and in effect for 60 consecutive days.


 


If any Event of Default occurs and is
continuing, the Trustee by notice to the Issuer or the Holders of at least 25%
of the aggregate principal amount then outstanding of the Notes by written
notice to the Issuer and the Trustee, may declare all the Notes to be due and
payable immediately.  Notwithstanding the
foregoing, in the case of an Event of Default specified in paragraph (j) or
(k) of Section 6.01 of the Indenture, all outstanding Notes shall
become and shall be immediately due and payable without further action or
notice.  Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the Indenture.  The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except 


 


A-6

















 


a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding notice is
in such Holders’ interest.


 


Any failure to perform under, or breach of, Section 4.03
of the Indenture shall not be a Default or an Event of Default until the 121st
day after the Issuer has received the notice referred to in clause (e) of Section 6.01
of the Indenture (at which point, unless cured or waived, such failure to
perform or breach shall constitute an Event of Default).  Prior to such 121st day, remedies against the
Issuer for any such failure or breach will be limited to additional interest at
a rate per year equal to 0.25% of the principal amount of such Notes from the
60th day following such notice to and including the 121st day following such
notice.


 


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


 


The Issuer is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture.


 


(13)      Trustee Dealings with Issuer.  The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledges of the Notes
and may otherwise deal with the Issuer or any Affiliate of the Issuer with the
same rights if would have had if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as Trustee (if any of
the Notes are registered pursuant to the Securities Act), or resign.


 


(14)      No Personal Liability of Directors, Owners, Employees, Incorporators
and Stockholders.  No
director, owner, officer, employee, incorporator or stockholder of the Issuer,
the Guarantors or any of their Affiliates, as such, shall have any liability
for any obligations of the Issuer, the Guarantors or any of their Affiliates
under this Note, the Guarantees or the 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.


 


(15)      Guarantees.  Payment
of principal and interest (including interest on overdue principal and overdue
interest, if lawful) is unconditionally guaranteed, jointly and severally, by
each of the Guarantors.


 


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


 


(17)      Abbreviations. 
Customary abbreviations may be used in the name of a Holder of a Note or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the 


 


A-7

















 


entireties), JT TEN ( = joint tenants with
right of survivorship and not as tenants in common), CUST (5 Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).


 


(18)      CUSIP Numbers. 
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Issuer has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes.  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 herein.


 


The Issuer will furnish to any Holder of a
Note upon written request and without charge a copy of the Indenture.  Requests may be made to:


 


INTERVAL
ACQUISITION CORP.


6262 Sunset Drive


Miami, FL 33143


Attention:  General Counsel


 


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 Soc. Sec. or tax I.D. no.)

  	
   

  



 


 


	
   

  	
  (Print
  or type assignee’s name, address and Zip code)

  	
   

  



 


and irrevocably appoint
                            
agent to transfer this Note on the books of the Issuer.  The agent may substitute another to act for
him or her.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Your Signature: 

  	
   

  
	
   

  	
   

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

  
					



Signature
Guarantee.


 


A-9

















 


OPTION OF HOLDER TO ELECT
PURCHASE


 


If you want to elect to have all or any part of this
Note purchased by the Issuer pursuant to Section 3.08 (Excess Proceeds
Offer) or Section 4.15 (Change of Control) of the Indenture, check the
appropriate box:


 


o            Section 3.08                           o            Section 4.15


 


If you want to have only part of the Note purchased
by the Issuer pursuant to Section 3.08 or Section 4.15 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)

  
					



Signature
Guarantee.


 


A-10

















 


[ATTACHMENT FOR GLOBAL NOTES]


 


SCHEDULE OF EXCHANGES OF
INTERESTS IN 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:


 


	
  Date of Exchange

  	
   

  	
  Amount of 

  decrease in

  Principal Amount of 

  this Global Note

  	
   

  	
  Amount of Increase

  Principal Amount of

  this Global Note

  	
   

  	
  Principal Amount

  of this Global Note

  following such

   Decrease (or Increase)

  	
   

  	
  Signature of

  authorized officer 

  of Trustee or

  Note Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-11

















 


EXHIBIT B


 


FORM OF GUARANTEE


 


[Name of Guarantor] and its successors under the
Indenture, jointly and severally with any other Guarantors, hereby irrevocably
and unconditionally (i) guarantee the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, whether at maturity,
by acceleration, redemption or otherwise, the due and punctual payment of
interest on the overdue principal of and interest, if any, on the Notes, to the
extent lawful, and the due and punctual performance of all other obligations of
Interval Acquisition Corp. (the “Issuer”) to the
Holders or the Trustee all in accordance with the terms set forth in Article 10
of the Indenture and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, guarantee that the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.  Capitalized terms used
herein have the meanings assigned to them in the Indenture unless otherwise
indicated.


 


No director, owner, officer, employee, incorporator
or stockholder of any Guarantor or any of its Affiliates, as such, shall have
any liability for any obligations of such Guarantor or any of its Affiliates
under this guarantee by reason of his, her or its status as such.  This Guarantee shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions hereof.


 


This Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.


 


THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.


 


This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.


 


	
   

  	
  [ 

  	
  ]

  
	
   

  	
  Name of Guarantor

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


B-1

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF
TRANSFER


 


Interval
Acquisition Corp.

6262 Sunset Drive

Miami, FL 33143

Attention:  General Counsel


 


The
Bank of New York Mellon

101 Barclay Street, Floor 8W


New
York, NY 10286


Attn:
Corporate Trust Administration


 


Re:  9.5%  Senior Notes
due 2016


 


Reference is hereby made to the Indenture, dated as of
August 19, 2008 (the “Indenture”),
among Interval Acquisition Corp., as Issuer (the “Issuer”),
the Guarantors named therein and The Bank of New York Mellon, as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


                                
(the “Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $         in
such Note[s] or interests (the “Transfer”), to
                    
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.                                       o                                    Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the 144A Global Note and/or the Definitive Note and in the Indenture
and the Securities Act.


 


C-1

















 


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


 


(a)                                  o            such Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act;


 


or


 


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


 


or


 


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


 


or


 


(d)                                 o            such Transfer
is being effected pursuant to any other exemption from the registration
requirements of the Securities Act.


 


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


 


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


 


(b)                                 o            Check
if Transfer is Pursuant to 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, and in compliance
with the transfer 


 


C-2

















 


restrictions contained in the Indenture and any applicable blue sky
securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


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


 


	
   

  	
   

  
	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
				



 


C-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


 


(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    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.


 


C-4

















 


EXHIBIT D


 


FORM OF CERTIFICATE OF
EXCHANGE


 


Interval
Acquisition Corp.


6262
Sunset Drive

Miami, FL 33143

Attention:  General Counsel


 


The
Bank of New York Mellon

101 Barclay Street, Floor 8W


New
York, NY 10286


Attn:
Corporate Trust Administration


 


Re:  9.5% Senior Notes due
2016


 


(CUSIP [             ])


 


Reference is hereby made to the Indenture, dated as
of August 19, 2008 (the “Indenture”),
among Interval Acquisition Corp., as Issuer (the “Issuer”),
the Guarantors named therein and The Bank of New York Mellon, as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


                              
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of
$                
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.          Exchange of Restricted Definitive Notes or
Beneficial Interests in a Restricted Global Note for Unrestricted Definitive
Notes or Beneficial Interests in an Unrestricted Global Note.


 


(a)        o      Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.


 


(b)        o      Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive
Note.  In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer,



 


D-1

















 


(ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


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


 


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


 


2.          Exchange of Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes
or Beneficial Interests in Restricted Global Notes.


 


(a)        o      Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)        o      Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the 144A 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 


 


D-2

















 


with the Securities Act, and
in compliance with any applicable blue sky securities laws of any state of the
United States.  Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.


 


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


 


	
   

  	
   

  
	
   

  	
  [Insert Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
				



 


D-3