Exhibit 4.1


 


WINDY CITY ACQUISITION CORP.


 


to be merged with and into


 


NUVEEN INVESTMENTS, INC.


 


as Issuer


 


and


 


THE GUARANTORS PARTY HERETO


 






 


101⁄2% SENIOR NOTES DUE 2015


 






 


INDENTURE


 


DATED AS OF NOVEMBER 13, 2007


 






 


U.S. BANK NATIONAL ASSOCIATION


 


as Trustee


 

















 


CROSS-REFERENCE TABLE


 


	
  Trust Indenture

  	
   

  	
   

  
	
  Act Section

  	
   

  	
  Indenture
  Section

  
	
  310

  	
   

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.3; 7.10

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
   

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
   

  	
  (a)

  	
   

  	
  2.5

  
	
   

  	
   

  	
  (b)

  	
   

  	
  12.3

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.3

  
	
  313

  	
   

  	
  (a)

  	
   

  	
  7.6

  
	
   

  	
   

  	
  (b)(1)

  	
   

  	
  7.6

  
	
   

  	
   

  	
  (b)(2)

  	
   

  	
  7.6; 7.7

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.6; 12.2

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.6

  
	
  314

  	
   

  	
  (a)

  	
   

  	
  4.3; 12.5

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  12.4

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  12.4

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (e)

  	
   

  	
  12.5

  
	
   

  	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
   

  	
  (a)

  	
   

  	
  7.1

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.5; 12.2

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.1

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.1

  
	
   

  	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
   

  	
  (a) (last sentence)

  	
   

  	
  2.9

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  6.5

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.7

  
	
   

  	
   

  	
  (c)

  	
   

  	
  2.13

  
	
  317

  	
   

  	
  (a)(1)

  	
   

  	
  6.8

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
   

  	
   

  	
  2.4

  
	
  318

  	
   

  	
  (a)

  	
   

  	
  12.1

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.1

  



 






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


 

















 


TABLE OF CONTENTS


 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.2

  	
  Other
  Definitions

  	
   

  	
  40

  
	
  SECTION 1.3

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
   

  	
  41

  
	
  SECTION 1.4

  	
  Rules of
  Construction

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Form and
  Dating

  	
   

  	
  42

  
	
  SECTION 2.2

  	
  Execution
  and Authentication

  	
   

  	
  44

  
	
  SECTION 2.3

  	
  Registrar;
  Paying Agent

  	
   

  	
  45

  
	
  SECTION 2.4

  	
  Paying Agent
  To Hold Money in Trust

  	
   

  	
  45

  
	
  SECTION 2.5

  	
  Holder Lists

  	
   

  	
  45

  
	
  SECTION 2.6

  	
  Book-Entry
  Provisions for Global Notes

  	
   

  	
  46

  
	
  SECTION 2.7

  	
  Replacement
  Notes

  	
   

  	
  48

  
	
  SECTION 2.8

  	
  Outstanding
  Notes

  	
   

  	
  49

  
	
  SECTION 2.9

  	
  Treasury
  Notes

  	
   

  	
  49

  
	
  SECTION 2.10

  	
  Temporary
  Notes

  	
   

  	
  49

  
	
  SECTION 2.11

  	
  Cancellation

  	
   

  	
  50

  
	
  SECTION 2.12

  	
  Defaulted
  Interest

  	
   

  	
  50

  
	
  SECTION 2.13

  	
  Record Date

  	
   

  	
  50

  
	
  SECTION 2.14

  	
  Computation
  of Interest

  	
   

  	
  50

  
	
  SECTION 2.15

  	
  CUSIP Number

  	
   

  	
  50

  
	
  SECTION 2.16

  	
  Special
  Transfer Provisions

  	
   

  	
  51

  
	
  SECTION 2.17

  	
  Issuance of
  Additional Notes

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Notices to
  Trustee

  	
   

  	
  53

  
	
  SECTION 3.2

  	
  Selection of
  Notes To Be Redeemed

  	
   

  	
  53

  
	
  SECTION 3.3

  	
  Notice of
  Redemption

  	
   

  	
  54

  
	
  SECTION 3.4

  	
  Effect of
  Notice of Redemption

  	
   

  	
  55

  
	
  SECTION 3.5

  	
  Deposit of
  Redemption of Purchase Price

  	
   

  	
  55

  
	
  SECTION 3.6

  	
  Notes
  Redeemed in Part

  	
   

  	
  56

  
	
  SECTION 3.7

  	
  Optional
  Redemption

  	
   

  	
  56

  
	
  SECTION 3.8

  	
  Mandatory
  Redemption

  	
   

  	
  57

  
	
  SECTION 3.9

  	
  Offer to
  Purchase

  	
   

  	
  57

  



 


i

















 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Payment of
  Notes

  	
   

  	
  58

  
	
  SECTION 4.2

  	
  Maintenance
  of Office or Agency

  	
   

  	
  58

  
	
  SECTION 4.3

  	
  Reports

  	
   

  	
  59

  
	
  SECTION 4.4

  	
  Compliance
  Certificate

  	
   

  	
  60

  
	
  SECTION 4.5

  	
  Taxes

  	
   

  	
  61

  
	
  SECTION 4.6

  	
  Stay,
  Extension and Usury Laws

  	
   

  	
  61

  
	
  SECTION 4.7

  	
  Limitation
  on Restricted Payments

  	
   

  	
  61

  
	
  SECTION 4.8

  	
  Limitation
  on Dividends and Other Payment Restrictions Affecting Subsidiaries

  	
   

  	
  69

  
	
  SECTION 4.9

  	
  Limitation
  on Incurrence of Indebtedness and Issuance of Preferred Stock

  	
   

  	
  71

  
	
  SECTION 4.10

  	
  Limitation
  on Asset Sales

  	
   

  	
  77

  
	
  SECTION 4.11

  	
  Limitation
  on Transactions with Affiliates

  	
   

  	
  79

  
	
  SECTION 4.12

  	
  Limitation
  on Liens

  	
   

  	
  81

  
	
  SECTION 4.13

  	
  Payments for
  Consent

  	
   

  	
  82

  
	
  SECTION 4.14

  	
  Offer To
  Purchase upon Change of Control

  	
   

  	
  82

  
	
  SECTION 4.15

  	
  Corporate
  Existence

  	
   

  	
  83

  
	
  SECTION 4.16

  	
  Business
  Activities

  	
   

  	
  84

  
	
  SECTION 4.17

  	
  Additional
  Guarantees

  	
   

  	
  84

  
	
  SECTION 4.18

  	
  Limitation
  on Prepayment or Modification of Existing Notes

  	
   

  	
  84

  
	
  SECTION 4.19

  	
  Further
  Instruments and Acts

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Merger,
  Consolidation or Sale of Assets

  	
   

  	
  85

  
	
  SECTION 5.2

  	
  Successor
  Corporation Substituted

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Events of
  Default

  	
   

  	
  87

  
	
  SECTION 6.2

  	
  Acceleration

  	
   

  	
  89

  
	
  SECTION 6.3

  	
  Other
  Remedies

  	
   

  	
  90

  
	
  SECTION 6.4

  	
  Waiver of
  Past Defaults

  	
   

  	
  90

  
	
  SECTION 6.5

  	
  Control by
  Majority

  	
   

  	
  90

  
	
  SECTION 6.6

  	
  Limitation
  on Suits

  	
   

  	
  91

  
	
  SECTION 6.7

  	
  Rights of
  Holders of Notes To Receive Payment

  	
   

  	
  91

  
	
  SECTION 6.8

  	
  Collection
  Suit by Trustee

  	
   

  	
  91

  
	
  SECTION 6.9

  	
  Trustee May
  File Proofs of Claim

  	
   

  	
  92

  
	
  SECTION 6.10

  	
  Priorities

  	
   

  	
  92

  



 


ii

















 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.11

  	
  Undertaking
  for Costs

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Duties of
  Trustee

  	
   

  	
  93

  
	
  SECTION 7.2

  	
  Rights of
  Trustee

  	
   

  	
  94

  
	
  SECTION 7.3

  	
  Individual
  Rights of Trustee

  	
   

  	
  96

  
	
  SECTION 7.4

  	
  Trustee’s
  Disclaimer

  	
   

  	
  96

  
	
  SECTION 7.5

  	
  Notice of
  Defaults

  	
   

  	
  96

  
	
  SECTION 7.6

  	
  Reports by
  Trustee to Holders of the Notes

  	
   

  	
  96

  
	
  SECTION 7.7

  	
  Compensation
  and Indemnity

  	
   

  	
  97

  
	
  SECTION 7.8

  	
  Replacement
  of Trustee

  	
   

  	
  98

  
	
  SECTION 7.9

  	
  Successor
  Trustee by Merger, Etc.

  	
   

  	
  99

  
	
  SECTION 7.10

  	
  Eligibility;
  Disqualification

  	
   

  	
  99

  
	
  SECTION 7.11

  	
  Preferential
  Collection of Claims Against the Company

  	
   

  	
  99

  
	
  SECTION 7.12

  	
  Trustee’s
  Application for Instructions from the Company

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  	
   

  
	
  DEFEASANCE; DISCHARGE OF THE INDENTURE

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Option To
  Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  100

  
	
  SECTION 8.2

  	
  Legal
  Defeasance

  	
   

  	
  100

  
	
  SECTION 8.3

  	
  Covenant
  Defeasance

  	
   

  	
  100

  
	
  SECTION 8.4

  	
  Conditions
  to Legal or Covenant Defeasance

  	
   

  	
  101

  
	
  SECTION 8.5

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

  	
   

  	
  102

  
	
  SECTION 8.6

  	
  Repayment to
  Company

  	
   

  	
  103

  
	
  SECTION 8.7

  	
  Reinstatement

  	
   

  	
  103

  
	
  SECTION 8.8

  	
  Discharge

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Without
  Consent of Holders of the Notes

  	
   

  	
  105

  
	
  SECTION 9.2

  	
  With Consent
  of Holders of Notes

  	
   

  	
  106

  
	
  SECTION 9.3

  	
  Compliance
  with Trust Indenture Act

  	
   

  	
  107

  
	
  SECTION 9.4

  	
  Revocation
  and Effect of Consents

  	
   

  	
  107

  
	
  SECTION 9.5

  	
  Notation on
  or Exchange of Notes

  	
   

  	
  108

  
	
  SECTION 9.6

  	
  Trustee To
  Sign Amendments, Etc.

  	
   

  	
  108

  



 


iii

















 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  	
   

  
	
  NOTE GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Guarantees

  	
   

  	
  108

  
	
  SECTION 10.2

  	
  Execution
  and Delivery of Guarantee

  	
   

  	
  110

  
	
  SECTION 10.3

  	
  Severability

  	
   

  	
  110

  
	
  SECTION 10.4

  	
  Limitation
  of Guarantors’ Liability

  	
   

  	
  110

  
	
  SECTION 10.5

  	
  Guarantors
  May Consolidate, Etc., on Certain Terms

  	
   

  	
  110

  
	
  SECTION 10.6

  	
  Contribution

  	
   

  	
  112

  
	
  SECTION 10.7

  	
  Waiver of
  Subrogation

  	
   

  	
  113

  
	
  SECTION 10.8

  	
  Releases of
  Guarantees

  	
   

  	
  113

  
	
  SECTION 10.9

  	
  Benefits
  Acknowledged

  	
   

  	
  114

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  	
   

  
	
  SUBORDINATION OF GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Agreement To
  Subordinate

  	
   

  	
  114

  
	
  SECTION 11.2

  	
  Liquidation,
  Dissolution or Bankruptcy

  	
   

  	
  115

  
	
  SECTION 11.3

  	
  Default on
  Designated Senior Indebtedness of a Guarantor

  	
   

  	
  115

  
	
  SECTION 11.4

  	
  Demand for
  Payment

  	
   

  	
  116

  
	
  SECTION 11.5

  	
  When
  Distribution Must Be Paid Over

  	
   

  	
  117

  
	
  SECTION 11.6

  	
  Subrogation

  	
   

  	
  117

  
	
  SECTION 11.7

  	
  Relative
  Rights

  	
   

  	
  117

  
	
  SECTION 11.8

  	
  Subordination
  May Not Be Impaired by a Guarantor

  	
   

  	
  117

  
	
  SECTION 11.9

  	
  Rights of
  Trustee and Paying Agent

  	
   

  	
  117

  
	
  SECTION
  11.10

  	
  Distribution
  or Notice to Representative

  	
   

  	
  118

  
	
  SECTION
  11.11

  	
  Not To
  Prevent Events of Default or Limit Right To Demand Payment

  	
   

  	
  118

  
	
  SECTION
  11.12

  	
  Trust Moneys
  Not Subordinated

  	
   

  	
  118

  
	
  SECTION
  11.13

  	
  Trustee
  Entitled To Rely

  	
   

  	
  118

  
	
  SECTION
  11.14

  	
  Trustee To
  Effectuate Subordination

  	
   

  	
  119

  
	
  SECTION
  11.15

  	
  Trustee Not
  Fiduciary for Holders of Designated Senior Indebtedness of Guarantors

  	
   

  	
  119

  
	
  SECTION
  11.16

  	
  Reliance by
  Holders of Designated Senior Designated Indebtedness of a Guarantor on
  Subordination Provisions

  	
   

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.1

  	
  Trust Indenture
  Act Controls

  	
   

  	
  120

  
	
  SECTION 12.2

  	
  Notices

  	
   

  	
  120

  
	
  SECTION 12.3

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
   

  	
  121

  
	
  SECTION 12.4

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  	
  121

  
	
  SECTION 12.5

  	
  Statements
  Required in Certificate or Opinion

  	
   

  	
  122

  
	
  SECTION 12.6

  	
  Rules by
  Trustee and Agents

  	
   

  	
  122

  
	
  SECTION 12.7

  	
  No Personal
  Liability of Directors, Officers, Employees and Stockholders

  	
   

  	
  122

  
	
  SECTION 12.8

  	
  Governing
  Law

  	
   

  	
  122

  



 


iv

















 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.9

  	
  No Adverse
  Interpretation of Other Agreements

  	
   

  	
  123

  
	
  SECTION
  12.10

  	
  Successors

  	
   

  	
  123

  
	
  SECTION
  12.11

  	
  Severability

  	
   

  	
  123

  
	
  SECTION
  12.12

  	
  Counterpart
  Originals

  	
   

  	
  123

  
	
  SECTION
  12.13

  	
  Table of
  Contents, Headings, Etc.

  	
   

  	
  123

  
	
  SECTION 12.14

  	
  Acts of
  Holders

  	
   

  	
  123

  
	
  SECTION
  12.15

  	
  Effectiveness
  of Merger

  	
   

  	
  124

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  FORM OF
  NOTE

  
	
  Exhibit B

  	
   

  	
  FORM OF
  NOTATION OF GUARANTEE

  
	
  Exhibit C

  	
   

  	
  FORM OF
  CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO
  RULE 144A

  
	
  Exhibit D

  	
   

  	
  FORM OF
  CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO
  REGULATION S

  



 


v

















 


This Indenture, dated as of November 13,
2007, is by and among Windy City Acquisition Corp. (“Merger Sub”), a
Delaware corporation, each Guarantor (as defined herein), and U.S. Bank
National Association, as trustee (the “Trustee”).


 


On the date hereof, Merger Sub shall be
merged with and into the Company (the “Merger”), with the Company continuing as
the surviving corporation and assuming all of the obligations of Merger Sub
under this Indenture. This Indenture shall not be effective against the Company
and the Subsidiary Guarantors until the consummation of the Merger.


 


Each party agrees as follows for the benefit
of each other and for the equal and ratable benefit of the holders of Notes:


 


ARTICLE I


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION 1.1         Definitions.


 


“Acquired Debt” means, with respect to
any specified Person:


 


(a)           Indebtedness of any
other Person existing at the time such other Person is merged with or into or
became a Restricted Subsidiary of such specified Person, including Indebtedness
incurred in connection with, or in contemplation of, or to provide all or any
portion of the funds or credit support utilized in connection with, such other
Person merging with or into, or becoming a Restricted Subsidiary of, such
specified Person; and


 


(b)           Indebtedness secured by
an existing Lien encumbering any asset acquired by such specified Person.


 


“Acquisition Agreement” means that
certain agreement and plan of merger dated as of June 19, 2007 between Windy
City Investments, Inc., Windy City Acquisition Corp. and Nuveen Investments,
Inc., a Delaware corporation, as amended, modified and/or supplemented from
time to time in accordance with the terms thereof, pursuant to which Windy City
Acquisition Corp. will merge with and into Nuveen Investments, Inc., with
Nuveen Investments, Inc. surviving such merger.


 


“Additional Interest” has the meaning
given to such term or similar terms (including “Liquidated Damages”) in the
Registration Rights Agreement.


 


“Additional Notes” means Notes (other
than the Initial Notes) issued pursuant to Article II hereof and otherwise
in compliance with the provisions of this Indenture.


 


“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.


 


“AHYDO Catch Up Payment” means
payments in respect of Indebtedness necessary in order to avoid such
Indebtedness being characterized as “applicable high yield discount obligations”
within the meaning of the Code.


 


“Applicable Premium” means, with
respect to any Note on any applicable redemption date, the excess of:


 


(a)           the present value at
such redemption date of (i) the redemption price at November 15, 2011
(such redemption price being set forth in Section 3.7(b)) plus
(ii) all required interest payments due on the Notes through November 15,
2011 (excluding accrued but unpaid interest to the date of redemption),
computed using a discount rate equal to the Treasury Rate as of such redemption
date plus 50 basis points; over


 


(b)           the then outstanding
principal amount of the Notes.


 


“Asset Sale” means (i) the sale,
conveyance, transfer, lease (as lessor) or other voluntary disposition (whether
in a single transaction or a series of related transactions) of property or assets
(including by way of a Sale and Lease-Back Transaction) of the Company (other
than the sale of Equity Interests of the Company) or any of its Restricted
Subsidiaries (each referred to in this definition as a “disposition”) or
(ii) the issuance or sale of Equity Interests of any Restricted Subsidiary
(whether in a single transaction or a series of related transactions), in each
case, other than:


 


(a)           a disposition of Cash
Equivalents or Investment Grade Securities or obsolete, damaged, worn out,
uneconomical or surplus assets in the ordinary course of business or inventory
(or other assets) held for sale in the ordinary course of business and
dispositions of property no longer used or useful in the conduct of the
business of the Company and its Restricted Subsidiaries or the disposition of
inventory in the ordinary course of business;


 


(b)           the disposition of all
or substantially all of the assets of the Company in a manner permitted
pursuant to Section 5.1 or any disposition that constitutes a Change of
Control;


 


(c)           the making of any
Restricted Payment or Permitted Investment that is permitted to be made, and is
made, pursuant to Section 4.7 or the granting of a Lien permitted by Section
4.12;


 


(d)           any disposition of
assets or issuance or sale of Equity Interests of any Restricted Subsidiary
(other than directors’ qualifying shares or shares required by applicable law
to be held by a Person other than the Company or a Restricted Subsidiary) in
any transaction or series of related transactions with an aggregate fair market
value of less than $25.0 million;


 


2

















 


(e)           any disposition of
property or assets or issuance of securities by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to another Restricted Subsidiary;


 


(f)            the lease, assignment,
sublease, license or sublicense of any real or personal property in the ordinary
course of business;


 


(g)           any issuance or sale of
Equity Interests in, or Indebtedness or other securities of, an Unrestricted
Subsidiary (other than any Unrestricted Subsidiary in which the Company or any
Restricted Subsidiary has made an Investment (including by designation of a
Restricted Subsidiary thereof as an Unrestricted Subsidiary) pursuant to clause
(17) of the second paragraph of Section 4.7 or clause (10) of the
definition of “Permitted Investments”);


 


(h)           foreclosures on assets
or transfers by reason of eminent domain;


 


(i)            disposition of an
account receivable in connection with the collection or compromise thereof;


 


(j)            termination of leases,
subleases, licenses and sublicenses in the ordinary course of business;


 


(k)           sales of accounts
receivable or rights to future advisory fees, or participations therein, in
connection with any Receivables Facility;


 


(l)            any financing
transaction with respect to property built or acquired by the Company or any
Restricted Subsidiary after the Issue Date, including Sale and Lease-Back
Transactions, permitted under this Indenture;


 


(m)          transfers of property
subject to casualty or condemnation proceedings (including in lieu thereof)
upon the receipt of the net cash proceeds therefor;


 


(n)           the abandonment of
intellectual property rights in the ordinary course of business, which in the
reasonable good faith determination of the Company or a Restricted Subsidiary
are not material to the conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole;


 


(o)           voluntary terminations
of Hedging Obligations;


 


(p)           any issuance of Equity
Interests in any Restricted Subsidiary to any officer, director, employee or
consultant of the Company or any Restricted Subsidiary in respect of services
provided to the Company or a Restricted Subsidiary in the ordinary course of
business approved by the Board of Directors of the Company;


 


(q)           any Permitted Asset
Swap;


 


(r)            Sale and Lease-Back
Transactions involving (i) real property owned on the Issue Date,
(ii) property acquired not more than 180 days prior to such Sale and 


 


3

















 


Lease-Back
Transaction for cash in an amount at least equal to the cost of such property
and (iii) other property for cash consideration if the sale is treated as
an Asset Sale; and


 


(s)           the sale or other
disposition of a Seed Capital Investment in the ordinary course of business.


 


“Asset Sale Offer” means an Offer to
Purchase required to be made by the Company or a Restricted Subsidiary pursuant
to Section 4.10 to all Holders.


 


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


 


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


 


“Board of Directors” means:


 


(a)           with respect to a
corporation, the board of directors of the corporation;


 


(b)           with respect to a
partnership, the board of directors of the general partner of the partnership;
and


 


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


 


“Board Resolution” means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
or any Restricted Subsidiary to have been duly adopted by the Board of
Directors thereof, unless the context specifically requires that such resolution
be adopted by a majority of the Disinterested Directors, in which case by a
majority of such directors, and to be in full force and effect on the date of
such certification and delivered to the Trustee.


 


“Broker-Dealer Subsidiary” means any
Subsidiary of the Company or any other Subsidiary of the Company required to be
registered as a broker-dealer under the Exchange Act.


 


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


 


“Calculation Date” has the meaning set
forth in the definition of “Total Leverage Ratio.”


 


“Capital Stock” means:


 


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


 


4

















 


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


 


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


 


(4)           any other interest or
participation that confers on a Person the right to receive a share of the profits
and losses of, or distributions of assets of, the issuing Person.


 


“Capitalized Lease Obligation” means,
at the time any determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at such time be required to
be capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP (except for temporary treatment of
construction-related expenditures under EITF 97-10, “The Effect of Lessee
Involvement in Asset Construction,” which will ultimately be treated as
operating leases upon a Sale and Lease-Back Transaction).


 


“Cash Equivalents” shall mean:


 


(a)           U.S. dollars;


 


(b)           in the case any Foreign
Subsidiary, such local currencies held by them from time to time in the
ordinary course of business;


 


(c)           securities issued or
directly and fully and unconditionally guaranteed or insured by the U.S.
government or any agency or instrumentality thereof the securities of which are
unconditionally guaranteed as a full faith and credit obligation of such government
with maturities of 24 months or less from the date of acquisition;


 


(d)           certificates of
deposit, time deposits and eurodollar time deposits with maturities of one year
or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with (i) any
lender under the Credit Agreement or an Affiliate thereof or (ii) any
commercial bank having capital and surplus of not less than $250.0 million in
the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of
the date of determination) in the case of non-U.S. banks;


 


(e)           repurchase obligations
for underlying securities of the types described in clauses (c), (d) and
(f) entered into with any financial institution meeting the qualifications
specified in clause (d) above;


 


(f)            commercial paper rated
at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing
within 24 months after the date of creation thereof;


 


(g)           marketable short-term
money market and similar securities having a rating of at least P-2 or A-2 from
either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor
S&P shall be rating such obligations, an equivalent rating from another 


 


5

















 


Rating Agency)
and in each case maturing within 24 months after the date of creation thereof;


 


(h)           investment funds
investing at least 95% of their assets in securities of the types described in
clauses (a) through (g) above;


 


(i)            readily marketable
direct obligations issued by any state, commonwealth or territory of the United
States or any political subdivision or taxing authority thereof having an
Investment Grade Rating from either Moody’s or S&P with maturities of 24
months or less from the date of acquisition;


 


(j)            Indebtedness or
Preferred Stock issued by Persons with a rating of “A” or higher from S&P
or “A2” or higher from Moody’s with maturities of 24 months or less from the
date of acquisition;


 


(k)           Investments with
average maturities of 12 months or less from the date of acquisition in money
market funds rated A- (or the equivalent thereof) or better by S&P or A3
(or the equivalent thereof) or better by Moody’s:


 


(l)            shares of investment
companies that are registered under the Investment Company Act of 1940 and
substantially all the investments of which are one or more of the types of
securities described in clauses (a) through (k) above; and


 


(m)          in the case of any
Foreign Subsidiary, investments of comparable tenure and credit quality to
those described in the foregoing clauses (a) through (l) above or other
high quality short term investments, in each case, customarily utilized in
countries in which such Foreign Subsidiary operates for short term cash management
purposes.


 


Notwithstanding the foregoing, Cash
Equivalents shall include amounts denominated in currencies other than those
set forth in clauses (a) and (b) above, provided that such
amounts are converted into any currency listed in clauses (a) and
(b) as promptly as practicable and in any event within ten Business Days
following the receipt of such amounts.


 


“Certificated Notes” means Notes that
are in the form of Exhibit A attached hereto other than Global
Notes.


 


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


 


(a)           the sale, lease,
transfer or other conveyance, in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, to any Person other than to one or more Permitted Holders;


 


(b)           the acquisition by any
Person or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act, or any successor provision), including
any group acting for the purpose of acquiring, holding or disposing of
securities (within the meaning of Rule 13d-5(b)(1) under the Exchange
Act), other than one or more Permitted Holders, in a single transaction or in a
related series of transactions, by way of merger, consolidation or other
business combination or purchase of Beneficial 


 


6

















 


Ownership or
otherwise, directly or indirectly, of 50% or more of the Voting Stock of the
Company or any of its direct or indirect parent entities, including, without
limitation, Parent; provided
that, for purposes of calculating the Beneficial Ownership of any group, a
Permitted Holder shall not be attributed Beneficial Ownership of the Capital
Stock of any unaffiliated person that is not itself a Permitted Holder;


 


(c)           any Person or group (as
defined in clause (2)) shall be entitled to appoint or elect 50% or more of the
Board of Directors of the Company or any of its direct or indirect parent
entities, including, without limitation, Parent; provided that the
Sponsor being entitled to appoint or elect 50% or more of the Board of
Directors of the Company or any of its direct or indirect parent entities shall
not be deemed a Change of Control; or


 


(d)           the first day on which
the majority of the Board of Directors of the Company or any of its direct or
indirect parent companies then in office shall cease to consist of Continuing
Directors.


 


“Change of Control Offer” means an
Offer to Purchase required to be made by the Company pursuant to Section 4.14
to all Holders.


 


“Code” means the United States
Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references
to the Code are to the Code, as in effect on the Issue Date, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.


 


“Commission” means the U.S. Securities
and Exchange Commission.


 


“Common Stock” of any Person means
Capital Stock in such Person that do not rank prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to Capital Stock of any
other class in such Person.


 


“Company” means initially, Windy City
Acquisition Corp. and, upon consummation of the Merger, Nuveen Investments,
Inc., and any successor thereto.


 


“Consolidated Depreciation and Amortization
Expense” means, with respect to any Person for any period, the total amount
of depreciation and amortization expense, including the amortization of
deferred financing fees, debt issuance costs, commissions, fees and expenses,
bridge commitment and other financing fees and other non-cash charges
(excluding any non-cash item that represents an accrual or reserve for a cash expenditure
for a future period) of such Person and its Restricted Subsidiaries for such
period on a consolidated basis and otherwise determined in accordance with
GAAP.


 


“Consolidated Guaranteed Indebtedness”  means, as at any date of determination, an amount equal to
(a) Consolidated Total Indebtedness minus (b) to the extent included in
Consolidated Total Indebtedness, (i) the amount of any Capital Stock and (ii)
the amount of any Indebtedness of the Company that is not guaranteed by any Restricted
Subsidiary.


 


7

















 


“Consolidated Interest Expense” means,
with respect to any Person for any period, without duplication, the sum of:


 


(a)           consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, to the
extent such expense was deducted (and not added back) in computing Consolidated
Net Income (including (i) amortization of original issue discount
resulting from the issuance of Indebtedness at less than par, (ii) all
commissions, discounts and other fees and charges owed with respect to letters
of credit or bankers acceptances, (iii) non-cash interest expense (but
excluding any non-cash interest expense attributable to the movement in the
mark-to-market valuation of Hedging Obligations or other derivative instruments
pursuant to GAAP), (iv) the interest component of Capitalized Lease
Obligations, (v) net payments, if any, pursuant to interest rate Hedging
Obligations with respect to Indebtedness, (vi) net losses on Hedging
Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk and (vii) costs of surety bonds in connection
with financing activities, and excluding (x) amortization of deferred
financing fees, debt issuance costs, commissions, fees and expenses,
(y) any expensing of bridge, commitment and other financing fees and
(z) commissions, discounts, yield and other fees and charges (including
any interest expense) related to any Receivables Facility); plus


 


(b)           consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less


 


(c)           interest income of such
Person and its Restricted Subsidiaries for such period (other than interest
income from Seed Capital Investments).


 


For purposes of this definition, interest on
a Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Company to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP.


 


“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of
the Net Income of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis, and otherwise determined in accordance with GAAP; provided,
however, that (without duplication),


 


(a)           any pro forma after-tax effect (using a reasonable estimate based on
applicable tax rates) of extraordinary, non-recurring or unusual gains or
losses (less all fees and expenses relating thereto) or expenses (including
relating to the Transactions), or any severance costs, integration costs,
relocation costs and costs associated with curtailments or modifications to
pension and post-retirement employee benefit plans shall be excluded,


 


(b)           the Net Income for such period shall not include the cumulative effect
of a change in accounting principles during such period,


 


(c)           any pro forma after-tax effect (using a reasonable estimate based on
applicable tax rates) of income (loss) from disposed or discontinued operations
and any 


 


8

















 


net after-tax gains or losses on disposal of disposed, abandoned or
discontinued operations shall be excluded,


 


(d)           any pro forma after-tax effect (using a reasonable estimate based on
applicable tax rates) of gains or losses (less all accrued fees and expenses
relating thereto) attributable to asset dispositions other than in the ordinary
course of business, as determined in good faith by the Company, shall be excluded,


 


(e)           the Net Income for such
period of any Person that is not a Subsidiary, or is an Unrestricted
Subsidiary, or that is accounted for by the equity method of accounting, shall
be excluded; provided that, to the extent not already included,
Consolidated Net Income of such Person shall be (A) increased by the amount of
dividends or distributions or other payments that are actually paid in cash (or
to the extent converted into cash) to such Person or a Subsidiary thereof that
is the Company or a Restricted Subsidiary in respect of such period (subject in
the case of dividends paid or distributions made to a Restricted Subsidiary
(other than a Guarantor) to the limitations contained in clause (f) below)
and (B) decreased by the amount of any equity of the Company in a net loss
of any such Person for such period to the extent the Company has funded such
net loss in cash with respect to such period,


 


(f)            solely for the purpose of determining
the amount available for Restricted Payments under clause (3) of the first
paragraph of Section 4.7, the Net Income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded if the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of its Net Income is not at the date of determination wholly
permitted without any prior governmental approval (which has not been obtained)
or, directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule, or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restriction with respect to the payment of dividends or similar
distributions has been legally waived, provided, that Consolidated Net Income
of the Company will be, subject to the exclusions in clauses (c) and (d) above,
increased by the amount of dividends or other distributions or other payments
actually paid in cash (or to the extent converted into cash) to the Company or
a Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,


 


(g)           effects of purchase accounting adjustments (including the effects of
such adjustments pushed down to such Person and such Subsidiaries) in component
amounts required or permitted by GAAP, resulting from the application of
purchase accounting in relation to the Transactions or any consummated acquisition
or the amortization or write-up, write-down or write-off of any amounts
thereof, net of taxes, shall be excluded,


 


(h)           any pro forma after-tax effect (using a reasonable estimate based on
applicable tax rates) of income (loss) from the early extinguishment of
Indebtedness or Hedging Obligations or other derivative instruments shall be
excluded,


 


(i)            any pro forma
after-tax effect (using a reasonable estimate based on applicable tax rates) of
any non-cash impairment charge or asset write-off, write-up or 


 


9

















 


write-down, in
each case, pursuant to GAAP and the amortization of intangibles arising (including
goodwill and organizational costs) pursuant to GAAP (excluding any such
non-cash adjustment to the extent that it represents an accrual of or reserve
for cash expenditures in any future period except to the extent such adjustment
is subsequently reversed), shall be excluded,


 


(j)            any pro forma after-tax effect (using a
reasonable estimate based on applicable tax rates) of non-cash compensation expense
recorded from grants of stock appreciation or similar rights, stock options, restricted
stock or other rights shall be excluded,


 


(k)           any other non-cash
charges, expenses or losses including any write-offs or write-downs and any
non-cash expense relating to the vesting of warrants, reducing Consolidated Net
Income for such period (provided that if any such non-cash charges represent
an accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future period shall be subtracted from
Consolidated Net Income in such future period to the extent paid, and excluding
amortization of a prepaid cash item that was paid in a prior period) shall be
excluded,


 


(l)            any fees and expenses incurred during
such period, or any amortization thereof for such period, in connection with
the Transactions and any acquisition, Investment, Disposition, dividend or
similar Restricted Payments, issuance or repayment of Indebtedness, issuance of
Equity Interests, refinancing or recapitalization transaction or amendment or
modification of any debt instrument (in each case, including any such
transaction consummated prior to the Issue Date and any such transaction
undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction shall be
excluded,


 


(m)          accruals and reserves that are established within twelve months after
the Issue Date that are so required to be established as a result of the
Transactions in accordance with GAAP shall be excluded, and


 


(n)           structuring fees and
upfront distribution costs paid in the ordinary course of business for
closed-end funds, mutual funds, exchange traded funds and other structured
products, such as collateralized loan and debt obligations, and payments made
to terminate trailer fees to underwriters of closed-end funds, mutual funds,
exchange traded funds and other structured products, shall be excluded.


 


Notwithstanding the foregoing, for the
purpose of Section 4.7 only, there shall be excluded from Consolidated
Net Income any income arising from any sale or other disposition of Restricted
Investments made by the Company and its Restricted Subsidiaries, any
repurchases and redemptions of Restricted Investments made by the Company and
its Restricted Subsidiaries, any repayments of loans and advances which
constitute Restricted Investments made by the Company and any Restricted
Subsidiary, any sale of the stock of an Unrestricted Subsidiary or any
distribution or dividend from an Unrestricted Subsidiary, in each case only to
the extent such amounts increase the amount of Restricted Payments permitted
under clause (3)(d) of the first paragraph of Section 4.7.


 


10
















 


“Consolidated Total Indebtedness”
means, as at any date of determination, an amount equal to (a) the sum of (1)
the aggregate amount of all outstanding Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed
money, Obligations in respect of Capitalized Lease Obligations and debt
obligations evidenced by promissory notes and similar instruments (excluding
Hedging Obligations) and (2) the aggregate amount of all outstanding
Disqualified Stock of the Company, all Preferred Stock of its Restricted Subsidiaries
and all Designated Preferred Stock on a consolidated basis, with the amount of
such Disqualified Stock and Preferred Stock equal to the greater of their
respective voluntary or involuntary liquidation preferences and maximum fixed
repurchase prices, in each case determined on a consolidated basis in
accordance with GAAP minus (b) the aggregate unrestricted cash and cash
equivalents included in the cash and cash equivalents accounts (other than
settlement assets) listed on the consolidated balance sheet of the Company and
the Restricted Subsidiaries as of such date. For purposes hereof, the “maximum
fixed repurchase price” of any Disqualified Stock or Preferred Stock that does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Stock or Preferred Stock as if such Disqualified
Stock or Preferred Stock were purchased on any date on which Consolidated Total
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in good faith by the Company.


 


“Contingent Obligations” means, with
respect to any Person, any obligation of such Person guaranteeing or having the
economic effect of guaranteeing any leases, dividends or other obligations that
do not constitute Indebtedness (“primary obligations”) of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor or (ii) to advance or
supply funds (A) for the purchase or payment of any such primary
obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor or (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
against loss in respect thereof or (iv) as an account party in respect of
any letter of credit, letter of guaranty or bankers’ acceptance.


 


“Continuing Directors” means, as of
any date of determination, individuals who (i) were members of such Board
of Directors on the Issue Date or (ii) were either (x) nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the
time of nomination or election, (y) appointed, approved or recommended by
a majority of the then Continuing Directors or (z) designated or appointed
by a Permitted Holder.


 


“Corporate Trust Office of the Trustee”
shall be at the address of the Trustee specified in Section 12.2
hereof or such other address as to which the Trustee shall specify for receipt
of notices under this Indenture.


 


“Credit Agreement” means that certain
credit agreement, to be dated as of the Issue Date, among the Company, Deutsche
Bank AG New York Branch, as Administrative Agent, the agents 


 


11

















 


and lenders
party thereto and certain other parties specified therein, providing for term
loans and revolving credit borrowings (including the issuance of letters of
credit), including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case
as amended, restated, supplemented, modified, renewed, refunded, replaced
(whether at maturity or thereafter) or refinanced from time to time in one or
more agreements or indentures (in each case with the same or new agents,
lenders or institutional investors), including any agreement adding or changing
the borrower or any guarantor or extending the maturity thereof or otherwise
restructuring all or any portion of the Indebtedness thereunder or increasing
the amount loaned or issued thereunder or altering the maturity thereof (provided
that such increase in borrowings is permitted under Section 4.9).


 


“Credit Facilities” means, with
respect to the Company, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities or Debt Issuances,
in each case, with banks, investment banks, insurance companies, mutual funds
and/or other institutional lenders or investors providing for revolving credit
loans, term loans, receivables or inventory financing (including through the
sale of receivables or inventory to such lenders or to special purpose entities
formed to borrow from (or sell receivables to) such lenders against such
receivables or inventory) or letters of credit or Debt Issuances, in each case,
as amended, restated, modified, renewed, refunded, replaced, supplemented or
refinanced, including refinancing with Debt Issuances, in whole or in part and
without limitation as to amounts, terms, conditions, covenants and other
provisions, from time to time. Indebtedness under Credit Facilities outstanding
on the date on which the Notes are first issued and authenticated under this
Indenture (after giving effect to the use of proceeds thereof) shall be deemed
to have been incurred on such date in reliance on the exception provided by
clause (1) of the second paragraph of Section 4.9.


 


“Debt Issuances” means, with respect
to the Company or any Restricted Subsidiary, one or more issuances after the
Issue Date of Indebtedness evidenced by notes, debentures, bonds or other
similar securities or instruments.


 


“Default” means any event that is, or
with the lapse of grace period or the giving of notice or both would, unless
cured or waived, be, an Event of Default.


 


“Depositary” means, with respect to
the Notes issuable or issued in whole or in part in global form, the Person
specified in Section 2.3 hereof as the Depositary with respect to
the Notes, until a successor shall have been appointed and become such pursuant
to Section 2.6 hereof, and, thereafter, “Depositary” shall mean or
include such successor.


 


“Designated Non-cash Consideration”
means the fair market value of non-cash consideration received by the Company
or any of its Restricted Subsidiaries in connection with an Asset Sale that is
so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate
setting forth the basis of such valuation, less the amount of cash or Cash
Equivalents received in connection with a subsequent sale of such Designated
Non-cash Consideration.


 


“Designated Preferred Stock” means
Preferred Stock of the Company or any direct or indirect parent company of the
Company (other than Disqualified Stock of the Company), that is 


 


12

















 


issued for
cash (other than to Parent or any of its Subsidiaries or an employee stock
ownership plan or trust established by the Company or any of its Subsidiaries)
and is so designated as Designated Preferred Stock, pursuant to an Officers’
Certificate delivered to the Trustee, on the issuance date thereof, the cash
proceeds of which are excluded from the calculation set forth in clause
(3) of the first paragraph of Section 4.7.


 


“Designated
Senior Indebtedness” of any Guarantor means the principal of,
premium, if any, and interest (including any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on any Secured Indebtedness of such Guarantor under
or with respect to the Credit Agreement, whether outstanding on the Issue Date
or thereafter created, incurred or assumed, including the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts constituting Secured Indebtedness
owing in respect of:


 


(1)           all monetary
obligations of every nature under, or with respect to, the Credit Agreement,
including, without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities (and guarantees thereof); and


 


(2)           all Hedging Obligations
in respect of the Credit Agreement;


 


in each case
whether outstanding on the Issue Date or thereafter incurred.


 


Notwithstanding the foregoing, “Designated
Senior Indebtedness” shall not include:


 


(1)           any Indebtedness of
such Guarantor to Parent or any of its Subsidiaries;


 


(2)           Indebtedness to, or
guaranteed on behalf of, any director, officer or employee of Parent or any of
its Subsidiaries (including, without limitation, amounts owed for
compensation);


 


(3)           that portion of any
Indebtedness incurred in violation of Section 4.9 or secured in
violation of Section 4.12 (but, as to any such obligation, no such
violation shall be deemed to exist for purposes of this clause (3) if the
holder(s) of such obligation or their representative shall have received an
Officers’ Certificate of the Company to the effect that the incurrence and
securing of such Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence and securing of the entire committed amount thereof at the
date on which the initial borrowing thereunder is made would not) violate such
provisions of this Indenture);


 


(4)           Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of Title 11,
United States Code, is without recourse to such Guarantor; and


 


13

















 


(5)           any Indebtedness which
is, by its express terms, subordinated in right of payment to any other
Indebtedness of such Guarantor.


 


“Disqualified Stock” means, with
respect to any Person, any Capital Stock of such Person which, by its terms (or
by the terms of any security into which it is convertible or for which it is
putable or exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable (other than as a result of a change of control or asset
sale), pursuant to a sinking fund obligation or otherwise, or is redeemable at
the option of the holder thereof (other than as a result of a change of control
or asset sale), in whole or in part, in each case prior to the earlier of the
final maturity date of the Notes or the date the Notes are no longer
outstanding; provided, however, that if such Capital Stock is issued to any employees of
the Company or any of its Subsidiaries for compensatory purposes or to plan for
the benefit of employees of the Company or any of its Subsidiaries or by any
such plan to such employees, such Capital Stock shall not constitute Disqualified
Stock solely because it may be required to be repurchased by the Company or any
of its Subsidiaries pursuant to the terms of any such arrangement.


 


“Domestic Subsidiary” means any direct
or indirect subsidiary of the Company that was formed under the laws of the
United States, any State of the United States or the District of Columbia.


 


“DTC” means The Depository Trust
Company and any successor.


 


“EBITDA” means, with respect to any
Person for any period, the Consolidated Net Income of such Person for such
period


 


(a)           increased (without
duplication) by (to the extent the same was deducted (and not added back) in
calculating such Consolidated Net Income):


 


(i)            provision
for taxes based on income or profits or capital (or any alternative tax in lieu
thereof), including, without limitation, foreign, state, franchise and similar
taxes and foreign withholding taxes of such Person and such subsidiaries paid
or accrued during such period, including payments made pursuant to any tax sharing
agreements or arrangements among the Company, its Restricted Subsidiaries and
any direct or indirect parent company of the Company (so long as such tax
sharing payments are attributable to the operations of the Company and its
Restricted Subsidiaries); plus


 


(ii)           Fixed
Charges of such Person for such period; plus


 


(iii)          Consolidated
Depreciation and Amortization Expense of such Person for such period; plus


 


(iv)          any
fees, costs, commissions, expenses, accruals or other charges (including stock
and other equity-based compensation expenses) (other than Consolidated
Depreciation and Amortization Expense but including the effects of purchase
accounting adjustments) related to the Transactions, any Equity Offering, Permitted
Investment, acquisition, disposition, dividend or similar Restricted Payment,
recapitalization or the incurrence or repayment, amendment 


 


14

















 


or modification
of Indebtedness permitted to be incurred under this Indenture (including a
refinancing thereof) (whether or not successful), including (w) any expensing
of bridge, commitment or other financing fees, (x) such fees, costs,
commissions, expenses or other charges related to the offering of the Notes and
the Credit Facilities, (y) any such fees, costs (including call premium),
commissions, expenses or other charges related to any amendment or other
modification of the Existing Notes, the Notes and the Credit Facilities and (z)
commissions, discounts, yield and other fees and charges (including any
interest expense) related to any Receivables Facility; plus


 


(v)           the
amount of any restructuring charge or reserve, including restructuring costs
and integration costs incurred in connection with acquisitions after the Issue
Date, costs related to the closure and/or consolidation of facilities,
retention charges, contract termination costs, retention, recruiting,
relocation, severance and signing bonuses and expenses, transaction fees and
expenses, future lease commitments, systems establishment costs, conversion
costs and excess pension charges, consulting fees and any one-time expense
relating to enhanced accounting function, or costs associated with becoming a
standalone entity or public company incurred in connection with any of the
foregoing; provided that the aggregate amount of expenses added pursuant to
this clause (v) shall not exceed $30.0 million in any period of four
consecutive fiscal quarters most recently ended prior to the determination
date; plus


 


(vi)          the
amount of management, monitoring, consulting, transaction and advisory fees and
related expenses accrued or paid in such period pursuant to the Management
Agreement; plus


 


(vii)         costs
or expense of such Person pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or
any stock subscription or shareholder agreement, to the extent that such cost
or expenses are funded with cash proceeds contributed to the capital of the
Company or net cash proceeds of an issuance of Equity Interest of the Company
(other than Disqualified Stock) solely to the extent that such net cash
proceeds are excluded from the calculation of the amount available for
Restricted Payments under clause (3) of the first paragraph of Section 4.7;
plus


 


(viii)        the
amount of net cost savings and acquisition synergies projected by the Company
in good faith to be realized during such period (calculated on a pro forma
basis as though such cost savings had been realized on the first day of such
period) as a result of specified actions taken or initiated in connection with
the Transactions or any acquisition or disposition (including termination or
discontinuance of activities constituting such business) by the Company or any
Restricted Subsidiary, net of the amount of actual benefits realized during
such period that are otherwise included in the calculation of EBITDA from such
actions; provided that (A) such cost savings are reasonably identifiable
and factually supportable as evidenced in an Officers’ Certificate and (B) such
actions 


 


15

















 


are taken
within 12 months after the Issue Date or the date of such acquisition or disposition;
plus


 


(ix)           to
the extent covered by insurance and actually reimbursed or otherwise paid, or,
so long as the Company has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed or otherwise paid by the
insurer and only to the extent that such amount is (A) not denied by the
applicable carrier in writing within 180 days and (B) in fact reimbursed or
otherwise paid within 365 days of the date of such evidence (with a deduction
for any amount so added back to the extent not so reimbursed or otherwise paid
within such 365 days), expenses with respect to liability or casualty events
and expenses or losses relating to business interruption; plus


 


(x)            expenses
to the extent covered by contractual indemnification or refunding provisions in
favor of the Company or a Restricted Subsidiary and actually paid or refunded,
or, so long as the Company has made a determination that there exists
reasonable evidence that such amount will in fact be paid or refunded by the
indemnifying party or other obligor and only to the extent that such amount is
(A) not denied by the applicable indemnifying party or obligor in writing
within 90 days and (B) in fact reimbursed within 180 days of the date of such
evidence (with a deduction for any amount so added back to the extent not so
reimbursed within such 180 days); plus


 


(xi)           an
amount equal to losses on Seed Capital Investments up to $15.0 million in any
four-quarter period; plus


 


(xii)          the
amount of loss on sale of receivables to a Receivables Subsidiary in connection
with a Receivables Facility; plus


 


(xiii)         extraordinary
losses or unusual or non-recurring charges or expenses (including fines and
penalties);


 


(b)           decreased by (without
duplication) (i) non-cash gains increasing Consolidated Net Income of such
Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that
reduced EBITDA in any prior period, (ii) the minority interest income
consisting of subsidiary losses attributable to minority equity interests of
third parties in any non-Wholly Owned Subsidiary to the extent such minority
interest income is included in Consolidated Net Income, (iii) an amount equal
to gains on Seed Capital Investments in excess of $15.0 million in any
four-quarter period and (iv) extraordinary gains or unusual or non-recurring
income or gains (to the extent not already excluded in calculating Consolidated
Net Income); and


 


(c)           increased or decreased
by (without duplication):


 


(i)            any
net gain or loss resulting in such period from Hedging Obligations and the application
of Statement of Financial Accounting Standards 


 


16

















 


No. 133 and
International Accounting Standards No. 39 and their respective related
pronouncements and interpretations; plus or minus, as applicable,


 


(ii)           any
net gain or loss included in calculating Consolidated Net Income resulting in
such period from currency translation gains or losses related to currency
remeasurements of indebtedness (including any net loss or gain resulting from
hedge agreements for currency exchange risk).


 


Notwithstanding the foregoing, the provision
for taxes based on the income or profits of, and the depreciation and
amortization and non-cash charges of, a Restricted Subsidiary (other than a
Guarantor) shall be added to Consolidated Net Income to compute EBITDA only to
the extent (and in the same proportion, including by reason of minority
interests) that the net income or loss of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without any prior governmental approval
(which has not been obtained) or would not be restricted from being so
dividended, directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule,
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or in similar distributions has been legally waived.


 


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


 


“Equity Offering” means any public or
private sale of Common Stock or Preferred Stock of the Company or any of its
direct or indirect parent companies (excluding Disqualified Stock), other than
(i) public offerings with respect to Common Stock of the Company or of any
of its direct or indirect parent companies registered on Form S-4 or
Form S-8, (ii) any such public or private sale that constitutes an
Excluded Contribution or (iii) an issuance to any Subsidiary of the Company.


 


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


 


“Exchange Notes” means the series of
Notes to be issued under this Indenture in exchange for the Initial Notes
pursuant to the Registration Rights Agreement.


 


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


 


 “Excluded
Contribution” means net cash proceeds, marketable securities or Qualified
Proceeds, in each case received by the Company and its Restricted Subsidiaries
from:


 


(a)           contributions to its
common equity capital; and


 


(b)           the sale (other than to
a Subsidiary or to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement of the 


 


17

















 


Company or any
Subsidiary) of Capital Stock (other than Disqualified Stock and Designated Preferred
Stock),


 


in each case
designated as Excluded Contributions pursuant to an Officers’ Certificate
delivered to the Trustee on the date such capital contributions are made or the
date such Equity Interests are sold, as the case may be, which are excluded
from the calculation set forth in clause (3) of the first paragraph of Section
4.7.


 


“Existing Notes” means the Company’s
$250,000,000 5.00% Senior Notes due 2010 and $300,000,000 5.50% Senior Notes
due 2015 outstanding on the Issue Date.


 


“Existing Notes Indenture”  means that certain Indenture, dated as of September 12,
2005, between Nuveen Investments, Inc. and The Bank of New York Trust Company,
N.A., as Trustee, as amended by the First Supplemental Indenture, dated as of
September 12, 2005, between Nuveen Investments, Inc. and The Bank of New York
Trust Company, N.A., as Trustee.


 


“Expiration Date” has the meaning set
forth in the definition of “Offer to Purchase.”


 


“Fixed Charges” means, with respect to
any Person for any period, the sum of, without duplication,
(a) Consolidated Interest Expense (excluding all non-cash interest expense
and amortization/accretion of original issue discount (including any original
issue discount created by fair value adjustments to Indebtedness in existence
as of the Issue Date as a result of purchase accounting)) of such Person for
such period, (b) all cash dividends paid during such period (excluding
items eliminated in consolidation) on any series of Preferred Stock of such
Person and its Subsidiaries and (c) all dividends paid during such period
(excluding items eliminated in consolidation) on any series of Disqualified
Stock of such Person and its Subsidiaries.


 


“Foreign Subsidiary” means any
Restricted Subsidiary of the Company that is not a Domestic Subsidiary.


 


“GAAP” means generally accepted
accounting principles in the United States in effect on the date of this
Indenture, except for any reports required to be delivered pursuant to Section
4.3, which shall be prepared in accordance with GAAP in effect on the date
thereof. For purposes of this Indenture, the term “consolidated” with respect
to any Person means such Person consolidated with its Restricted Subsidiaries
and does not include any Unrestricted Subsidiary.


 


“Global Note Legend” means the legend
identified as such in Exhibit A hereto.


 


“Global Notes” means the Notes that
are in the form of Exhibit A hereto issued in global form and
registered in the name of the Depositary or its nominee. Notwithstanding
anything to the contrary contained herein, notices, delivery and payment with
respect to the Global Notes will be through the facilities of DTC.


 


“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, through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness or other obligations. When used
as a verb, “guarantee” shall have a corresponding meaning.


 


18

















 


“Guarantee” means any guarantee of the
obligations of the Company under this Indenture and the Notes by a Guarantor in
accordance with the provisions of this Indenture. When used as a verb, “Guarantee”
shall have a corresponding meaning.


 


“Guaranteed
Indebtedness Leverage Ratio”  means, with
respect to any Person, at any date the ratio of (i) Consolidated Guaranteed
Indebtedness to (ii) EBITDA (as calculated below) of such Person for the
four full fiscal quarters for which internal financial statements are available
immediately preceding such date on which such additional Indebtedness is
incurred. In the event that the Company or any of its Restricted Subsidiaries
incurs or redeems any Indebtedness (other than incurrences or redemptions of
working capital borrowings under revolving credit facilities in the ordinary
course of business) subsequent to the end of the period for which the
Guaranteed Indebtedness Leverage Ratio is being calculated but prior to the
event for which the calculation of the Guaranteed Indebtedness Leverage Ratio
is made (the “Guaranteed Leverage Calculation Date”),  then the Guaranteed Indebtedness Leverage Ratio shall be
calculated using the aggregate amount of Consolidated Guaranteed Indebtedness
as of the Guaranteed Leverage Calculation Date. The Guaranteed Indebtedness
Leverage Ratio shall be calculated in a manner consistent with the definition
of “Total Leverage Ratio,” including any pro forma calculations to EBITDA
(including for acquisitions).


 


“Guarantor” means any Person that
incurs a Guarantee of the Notes; provided that upon the release and
discharge of such Person from its Guarantee in accordance with this Indenture,
such Person shall cease to be a Guarantor. On the Issue Date, the Guarantors
will be Parent and each Domestic Subsidiary of the Company that is a Restricted
Subsidiary and a guarantor under the Credit Agreement.


 


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


 


(a)           currency exchange,
interest rate or commodity swap agreements, currency exchange, interest rate or
commodity cap agreements and currency exchange, interest rate or commodity
collar agreements; and


 


(b)           other agreements or
arrangements designed to manage, hedge or protect such Person with respect to
fluctuations in currency exchange, interest rates or commodity, raw materials,
utilities and energy prices.


 


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


 


“Indebtedness” means, with respect to
any Person,


 


(a)           any indebtedness
(including principal and premium) of such Person, whether or not contingent:


 


(i)            in
respect of borrowed money,


 


(ii)           evidenced
by bonds, notes, debentures or similar instruments,


 


19

















 


(iii)          evidenced
by letters of credit or bankers’ acceptances (or, without duplication, reimbursement
agreements in respect thereof),


 


(iv)          Capitalized
Lease Obligations,


 


(v)           representing
the deferred and unpaid balance of the purchase price of any property (other
than Capitalized Lease Obligations), except (A) any such balance that
constitutes a trade payable or similar obligation to a trade creditor in each
case accrued in the ordinary course of business, (B) liabilities accrued
in the ordinary course of business and (C) earn-outs and other contingent
payments in respect of acquisitions except to the extent that the liability on
account of any such earn-outs or contingent payment becomes fixed and is not
paid promptly thereafter after such payment becomes due and payable, or


 


(vi)          representing
any interest rate Hedging Obligations,


 


if and to the
extent that any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP,


 


(b)           to the extent not
otherwise included, any obligation of such Person to be liable for, or to pay,
as obligor, guarantor or otherwise, the Indebtedness of another Person (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business),


 


(c)           Disqualified Stock and
Designated Preferred Stock of such Person, and


 


(d)           to the extent not
otherwise included, Indebtedness of another Person secured by a Lien on any
asset (other than a Lien on Capital Stock of an Unrestricted Subsidiary) owned
by such Person (whether or not such Indebtedness is assumed by such Person);


 


provided, however, that notwithstanding the foregoing,
Indebtedness shall be deemed not to include (A) Contingent Obligations
incurred in the ordinary course of business and not in respect of borrowed
money, (B) items that would appear as a liability on a balance sheet
prepared in accordance with GAAP as a result of the application of EITF 97-10, “The
Effect of Lessee Involvement in Asset Construction,” and (C) obligations
with respect to Receivables Facilities. The amount of Indebtedness of any
person under clause (d) above shall be deemed to equal the lesser of
(x) the aggregate unpaid amount of such Indebtedness secured by such Lien
and (y) the fair market value of the property encumbered thereby as
determined by such person in good faith.


 


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


 


“Independent Financial Advisor” means
an accounting, appraisal or investment banking firm or consultant of nationally
recognized standing that is, in the good faith judgment of the Board of
Directors of the Company, qualified to perform the task for which it has been
engaged.


 


20

















 


“Investment Grade Rating” shall mean a
rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P, or an equivalent rating by any other Rating Agency.


 


“Investment Grade Securities” shall
mean:


 


(a)           securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof (other than Cash Equivalents);


 


(b)           debt securities or debt
instruments with an Investment Grade Rating, but excluding any debt securities
or instruments constituting loans or advances among the Company and its
Subsidiaries;


 


(c)           investments in any fund
that invests exclusively in investments of the type described in clauses
(a) and (b) which fund may also hold immaterial amounts of cash
pending investment or distribution; and


 


(d)           corresponding
instruments in countries other than the United States customarily utilized for
high quality investments.


 


“Investment Vehicle” means a separate
account or vehicle for collective investment (in whatever form of organization,
including a corporation, limited liability company, partnership, association,
trust or other entity, and including each separate portfolio or series of any
of the foregoing), including any entity investing in collateralized loan
obligations or collateralized debt obligations, which investments are managed
by the Company or any of its Restricted Subsidiaries in the ordinary course of
business.


 


“Investments” means, with respect to
any Person, all direct or indirect investments by such Person in other Persons
(including Affiliates) in the forms of loans (including guarantees or other
obligations), advances or capital contributions (including by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others, but excluding accounts receivable,
trade credit, commission, travel, entertainment, relocation, payroll and similar
advances to officers and employees, in each case made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities issued by any other Person and investments
that are required by GAAP to be classified on the balance sheet (excluding the
footnotes) of such Person in the same manner as the other investments included
in this definition to the extent such transactions involve the transfer of cash
or other property. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company
will be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in the
third paragraph of Section 4.7.


 


For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.7, (i) ”Investments” shall include the
portion (proportionate to the Company’s equity interest in 


 


21

















 


such
Subsidiary) of the fair market value of the net assets of a Subsidiary of the
Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to (x) the Company’s “Investment” in such Subsidiary at
the time of such redesignation less (y) the portion (proportionate to the
Company’s equity interest in such Subsidiary) of the fair market value of the
net assets of such Subsidiary at the time of such redesignation and
(ii) any property transferred to or from an Unrestricted Subsidiary shall
be valued at its fair market value at the time of such transfer, in each case
as determined in good faith by the Board of Directors of the Company.


 


“Issue Date” means the date of initial
issuance of the Notes, November 13, 2007.


 


“Legal Holiday” means a Saturday, a
Sunday or a day on which banking institutions in the City of New York, the city
in which the principal Corporate Trust Office of the Trustee is located or at a
place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday, payment shall 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.


 


“Lien” means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction; provided  that
in no event shall an operating lease be deemed to constitute a Lien.


 


“Management Agreement” means the
Management Services Agreement, dated as of the Issue Date, by and among certain
management companies associated with the Sponsor, certain other equity
investors and the Company and any direct or indirect parent company, as in effect
on the Issue Date or thereafter amended, modified or supplemented in a manner
that (x) does not increase the amount of fees payable by the Company, any of
its direct or indirect parent companies or any of its Subsidiaries and (y) is
not less advantageous to the holders of the Notes in any material respect than
the Management Agreement as in effect on the Issue Date.


 


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


 


“Net Income” means, with respect to
any Person, the net income (loss) of such Person, determined in accordance with
GAAP and before any reduction in respect of Preferred Stock dividends or
accretion of any Preferred Stock.


 


“Net Proceeds” shall mean, with
respect to any Asset Sale, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds subsequently received (as and when
received) in respect of deferred payments or non-cash consideration initially
received, net of any costs relating to the disposition thereof), net of,
without duplication, (i) out-of-pocket 


 


22

















 


expenses
incurred (including reasonable and customary banker’s fees or commissions,
investment banking, consultant, legal, accounting or similar fees, survey
costs, title insurance premiums, and related search and recording charges,
transfer, deed, recording and similar taxes incurred by the Company and its
Restricted Subsidiaries in connection therewith), and the Company’s good faith
estimate of taxes paid or payable (after taking into account any available tax
credits or deductions and tax sharing agreement or arrangement), in connection
with such Asset Sale (including, in the case of any such Asset Sale in respect
of property of any Foreign Subsidiary, taxes payable upon the repatriation of
any such proceeds), (ii) amounts provided as a reserve, in accordance with
GAAP, against any (x) liabilities under any indemnification obligations or
purchase price adjustment associated with such Asset Sale and (y) other
liabilities associated with the asset disposed of and retained by the Company
or any of its Restricted Subsidiaries after such disposition, including pension
and other post-employment benefit liabilities and liabilities related to
environmental matters (provided that to the extent and at the time any
such amounts are released from such reserve, such amounts shall constitute Net
Proceeds), (iii) any funded escrow established pursuant to the documents
evidencing any such sale or disposition to secure any indemnification
obligations or adjustments to the purchase price associated with any such sale
or disposition, (iv) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness or other obligation which is
secured by a Lien on the asset sold and (v) in the case of any such Asset Sale
by a non-Wholly Owned Restricted Subsidiary, the pro rata portion of the Net
Proceeds thereof (calculated without regard to this clause (v)) attributable to
minority interests and not available for distribution to or for the account of
the Company or a Wholly Owned Restricted Subsidiary as a result thereof.


 


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


 


“Notes” means the 101⁄2 % Senior Notes
due 2015 of the Company issued on the date hereof and any Additional Notes,
including any Exchange Notes. The Notes and the Additional Notes (including any
Exchange Notes), if any, shall be treated as a single class for all purposes
under this Indenture.


 


“Obligations” means any principal,
interest, premium, penalties, fees, indemnifications, reimbursements
(including, without limitation, reimbursement obligations with respect to
letters of credit), costs, expenses, damages and other liabilities, and
guarantees of payment of such principal, interest, premium, penalties, fees, indemnifications,
reimbursements, costs, expenses, damages and other liabilities, payable under
the documentation governing any Indebtedness.


 


“Offer” has the meaning set forth in
the definition of “Offer to Purchase.”


 


“Offer to Purchase” means a written offer
(the “Offer”) sent by the Company by first class mail, postage prepaid,
to each Holder at his address appearing in the security register on the date of
the Offer, offering to purchase up to the aggregate principal amount of Notes
set forth in such Offer at the purchase price set forth in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the “Expiration Date”)
of the Offer to Purchase which shall be, subject to any contrary requirements
of applicable law, not less than 30 days or more than 60 days after
the date of mailing of such Offer and a settlement date (the “Purchase Date”)
for purchase of Notes within 


 


23

















 


five (5)
Business Days after the Expiration Date. The Company shall notify the Trustee
at least 15 days (or such shorter period as is acceptable to the Trustee)
prior to the mailing of the Offer of the Company’s obligation to make an Offer
to Purchase, and the Offer shall be mailed by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company. The
Offer shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall also
state:


 


(1)           the Section of this
Indenture pursuant to which the Offer to Purchase is being made;


 


(2)           the Expiration Date and
the Purchase Date;


 


(3)           the aggregate principal
amount of the outstanding Notes offered to be purchased pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such amount has
been determined pursuant to Section 4.10 hereof) (the “Purchase
Amount”);


 


(4)           the purchase price to
be paid by the Company for each $1,000 principal amount of Notes accepted for
payment (as specified pursuant to this Indenture) (the “Purchase Price”);


 


(5)           that the Holder may
tender all or any portion of the Notes registered in the name of such Holder
and that any portion of a Note tendered must be tendered in minimum denominations
of $2,000 principal amount or integral multiples of $1,000 thereof;


 


(6)           the place or places
where Notes are to be surrendered for tender pursuant to the Offer to Purchase,
if applicable;


 


(7)           that, unless the
Company defaults in making such purchase, any Note accepted for purchase
pursuant to the Offer to Purchase will cease to accrue interest on and after
the Purchase Date, but that any Note not tendered or tendered but not purchased
by the Company pursuant to the Offer to Purchase will continue to accrue
interest at the same rate;


 


(8)           that, on the Purchase
Date, the Purchase Price will become due and payable upon each Note accepted
for payment pursuant to the Offer to Purchase;


 


(9)           that each Holder
electing to tender a Note pursuant to the Offer to Purchase will be required to
surrender such Note or cause such Note to be surrendered at the place or places
set forth in the Offer prior to the close of business on the Expiration Date
(such Note being, if the Company or the Trustee so requires, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing);


 


(10)         that Holders will be entitled
to withdraw all or any portion of Notes tendered if the Company (or its Paying
Agent) receives, not later than the close of 


 


24

















 


business on
the Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the aggregate principal amount of the
Notes the Holder tendered, the certificate number of the Note the Holder
tendered and a statement that such Holder is withdrawing all or a portion of
his tender;


 


(11)         that (a) if Notes having an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase all such Notes and
(b) if Notes having an aggregate principal amount in excess of the
Purchase Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Notes having an aggregate principal amount
equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Notes in minimum
denominations of $2,000 principal amount or integral multiples of $1,000
thereof shall be purchased); and


 


(12)         if applicable, that, in
the case of any Holder whose Note is purchased only in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Note without service charge, a new Note or Notes, of any authorized denomination
as requested by such Holder, in the aggregate principal amount equal to and in
exchange for the unpurchased portion of the aggregate principal amount of the
Notes so tendered.


 


“Offering Memorandum” means the
offering memorandum related to the issuance of the Notes on the Issue Date,
dated October 31, 2007.


 


“Officer” means the Chief Executive
Officer, the President, the Chief Financial Officer, the Chief Operating
Officer, principal accounting officer, controller, any Executive Vice President,
Senior Vice President or Vice President, the Treasurer or the Secretary of the
Company.


 


“Officers’ Certificate” means a
certificate signed on behalf of the Company, by two Officers of the Company,
one of whom is the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company that meets the
requirements set forth in this Indenture.


 


“Opinion of Counsel” means an opinion
from legal counsel who is reasonably acceptable to the Trustee. The counsel may
be an employee of or counsel to the Company or any Subsidiary of the Company.


 


“Parent” means Windy City Investments,
Inc., and any successor.


 


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


 


“Paying Agent” means any Person
authorized by the Company to pay the principal of, premium, if any, or interest
on any Notes on behalf of the Company.


 


“Permitted Asset Swap” means, to the
extent allowable under Section 1031 of the Code, the concurrent purchase and
sale or exchange of Related Business Assets or a combination of 


 


25

















 


Related
Business Assets (excluding any boot thereon) between the Company or any of its
Restricted Subsidiaries and another Person.


 


“Permitted Business” means the
business and any services, activities or businesses incidental, or directly
related or similar to, or complementary to any line of business engaged in by
the Company and its Subsidiaries as of the Issue Date or any business activity
that is a reasonable extension, development or expansion thereof or ancillary
thereto.


 


 “Permitted
Holders” means (i) the Sponsor, (ii) any other Person making an
investment in Parent concurrently with Sponsor on the Issue Date, (iii) any
Person who is an Officer or otherwise a member of management of the Company or
any of its Subsidiaries on the Issue Date, provided  that
if such Officers and members of management Beneficially Own more shares of
Capital Stock of either of the Company or any of its direct or indirect parent
entities than the amount of such shares Beneficially Owned by all the Officers
as of the Issue Date or issued within 90 days thereafter, such excess shall be
deemed not to be Beneficially Owned by Permitted Holders, (iv) any Related
Party of any of the foregoing Persons and (v) any “group” (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor
provision) of which any of the foregoing Persons specified in clauses (i),
(ii), (iii) or (iv) are members,  provided  that no member of the “group” (other than
the Sponsor) shall, without giving effect to Rule 13d-5 of the Exchange Act,
have Beneficial Ownership or otherwise, directly or indirectly, of 50% or more
of the Voting Stock of the Company or any of its direct or indirect parent
entities, including, without limitation, Parent.


 


“Permitted Investments” means


 


(1)           (A) any Investment
by the Company in any Restricted Subsidiary or by a Restricted Subsidiary in
the Company or another Restricted Subsidiary or (B) any Seed Capital
Investment made by the Company or any Restricted Subsidiary in the ordinary course
of business;


 


(2)           any Investment in cash
and Cash Equivalents or Investment Grade Securities;


 


(3)           any Investment by the
Company or any Restricted Subsidiary in a Person that is engaged in a Permitted
Business if as a result of such Investment (A) such Person becomes a
Restricted Subsidiary or (B) such Person, in one transaction or a series
of related transactions, is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary, and, in each case, any Investment
held by such Person; provided that such Investment was not acquired by
such Person in contemplation of such acquisition, merger, consolidation or transfer;


 


(4)           any Investment in
securities or other assets not constituting cash or Cash Equivalents or
Investment Grade Securities and received in connection with an Asset Sale made
pursuant to Section 4.10 or any other disposition of assets not
constituting an Asset Sale;


 


26

















 


(5)           any Investment existing
on the Issue Date or made pursuant to binding commitments in effect on the
Issue Date or an Investment consisting of any extension, modification,
replacement, renewal of any Investment existing on the Issue Date; provided
that the amount of any such Investment may be increased (x) as required by
the terms of such Investment as in existence on the Issue Date or (y) as
otherwise permitted under this Indenture;


 


(6)           loans and advances to,
or guarantees of Indebtedness of, directors, employees, officers and
consultants not in excess of $15.0 million outstanding at any one time, in the
aggregate;


 


(7)           any Investment acquired
by the Company or any Restricted Subsidiary (A) in exchange for any other
Investment or accounts receivable held by the Company or Restricted Subsidiary
in connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable
or settlement of delinquent accounts, or (B) as a result of a foreclosure
by the Company or Restricted Subsidiary with respect to any secured Investment
or other transfer of title with respect to any secured Investment in default;


 


(8)           Hedging Obligations
permitted under clause (10) of the second paragraph of Section 4.9
;


 


(9)           loans and advances to
officers, directors and employees for moving or relocation expenses and other
similar expenses, in each case incurred in the ordinary course of business or
to fund such Person’s purchase of Equity Interests of the Company;


 


(10)         any Investment by the
Company or a Restricted Subsidiary having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (10) that
are at that time outstanding not to exceed $100.0 million (with the fair
market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value); provided that if such
Investment is in Capital Stock of a Person that subsequently becomes a Restricted
Subsidiary, such Investment shall thereafter be deemed permitted under clause
(1) above and shall not be included as having been made pursuant to this
clause (10);


 


(11)         Investments the payment
for which consists of Equity Interests of the Company or any of its direct or
indirect parent companies (exclusive of Disqualified Stock); provided
that such Equity Interests will not increase the amount available for Restricted
Payments under clause (3)(b) of the first paragraph of Section 4.7;


 


(12)         guarantees (including
Guarantees) of Indebtedness permitted under Section 4.9 and performance
guarantees consistent with past practice, and the creation of liens on the
assets of the Company or any of its Restricted Subsidiaries in compliance with Section
4.12;


 


(13)         Investments consisting of
licensing of intellectual property pursuant to joint marketing arrangements
with other Persons;


 


27

















 


(14)         Investments consisting of
earnest money deposits required in connection with a purchase agreement or
other acquisition;


 


(15)         additional Investments in
joint ventures in an aggregate amount not to exceed $20.0 million at any time
outstanding;


 


(16)         loans and advances
relating to indemnification or reimbursement of any officers, directors or
employees in respect of liabilities relating to their serving in any such
capacity;


 


(17)         Investments in the nature
of pledges or deposits with respect to leases or utilities provided to third
parties in the ordinary course of business;


 


(18)         extensions of trade
credit in the ordinary course of business; and


 


(19)         Investments relating to a
Receivables Subsidiary that, in the good faith determination of the Company,
are necessary or advisable to effect a Receivables Facility.


 


“Permitted Junior Securities” means


 


(1)           Equity
Interests in the Company or any Guarantor; or


 


(2)           debt securities issued
pursuant to a confirmed plan of reorganization that are subordinated in right
of payment to (a) all Designated Senior Indebtedness and (b) any debt issued in
exchange for Designated Senior Indebtedness substantially the same extent as,
or to a greater extent than, the Guarantees are subordinated to Designated
Senior Indebtedness under this Indenture.


 


“Permitted Liens” means the following
types of Liens:


 


(1)           deposits of cash or
government bonds made in the ordinary course of business to secure surety or
appeal bonds to which such Person is a party;


 


(2)           Liens (including
deposits) in favor of issuers of stay, customs, performance, surety, bid, indemnity,
warranty, release, appeal or similar bonds or with respect to other regulatory
requirements or letters of credit or bankers’ acceptance issued, and completion
guarantees provided for, in each case pursuant to the request of and for the
account of such Person in the ordinary course of its business or consistent
with past practice;


 


(3)           Liens on property or
shares of stock of a Person at the time such Person becomes a Subsidiary; provided,  however, that such Liens are not created or incurred
in connection with, or in contemplation of, or to provide all or any portion of
the funds or credit support utilized in connection with, such other Person
becoming such a Subsidiary; provided further, however, that such Liens may not extend to
any other property owned by the Company or any Restricted Subsidiary;


 


28

















 


(4)           Liens on property at
the time the Company or a Restricted Subsidiary acquired the property,
including any acquisition by means of a merger or consolidation with or into
the Company or any of its Restricted Subsidiaries; provided, however, that such
Liens are not created or incurred in connection with, or in contemplation of,
or to provide all or any portion of the funds or credit support utilized for,
such acquisition; provided  further, however, that such
Liens may not extend to any other property owned by the Company or any Restricted
Subsidiary;


 


(5)           Liens securing Hedging
Obligations so long as the related Indebtedness is permitted to be incurred
under this Indenture and is secured by a Lien on the same property securing
such Hedging Obligation;


 


(6)           Liens on specific items
of inventory or other goods and proceeds of any Person securing such Person’s
obligations in respect of bankers’ acceptances or letters of credit issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;


 


(7)           Liens in favor of the
Company or any Restricted Subsidiary;


 


(8)           Liens to secure any
Indebtedness that is incurred to refinance any Indebtedness that has been
secured by a Lien existing on the Issue Date or referred to in clauses (3),
(4) and (l9) of this definition; provided, however, that such Liens (x) are no less
favorable to the Holders of the Notes taken as a whole and (y) do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so refinanced;


 


(9)           other Liens securing
Indebtedness for borrowed money or other obligations in an aggregate amount
under this clause (9) not exceeding $35.0 million at any time;


 


(10)         Liens for taxes,
assessments or other governmental charges or levies not overdue by more than
forty-five (45) days or the nonpayment of which in the aggregate would not
reasonably be expected to result in a material adverse effect, or which are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted or for property taxes on property that the Company or one
of its Subsidiaries has determined to abandon if the sole recourse for such
tax, assessment, charge, levy or claim is to such property;


 


(11)         judgment liens in respect
of judgments that do not constitute an Event of Default;


 


(12)         pledges, deposits or
security under workmen’s compensation, unemployment insurance and other social
security laws or regulations, or deposits to secure the performance of tenders,
contracts (other than for the payment of Indebtedness) or leases, deposits
given to public or private utilities or any government authority or deposits to
secure public or statutory obligations, or deposits as security for contested
taxes or import or customs duties or for the payment of rent, or deposits or
other security securing liabilities to insurance carriers under insurance or
self-insurance arrangements or 


 


29

















 


earnest money
deposits required in connection with a purchase agreement or other acquisition,
in each case incurred in the ordinary course of business or consistent with
past practice;


 


(13)         carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s and other like Liens imposed by
applicable law, (i) arising in the ordinary course of business and
securing obligations that are not overdue by more than sixty (60) days, (ii) (A) that
are being contested in good faith by appropriate proceedings and (B) the
Company or a Restricted Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP or (iii) the existence of
which would not reasonably be expected to result in a material adverse effect;


 


(14)         minor survey exceptions,
encumbrances, ground leases, easements or reservations of, or rights of others
for, licenses, rights of way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning, building codes or other
restrictions (including, without limitation, minor defects or irregularities in
title and similar encumbrances) as to the use of real properties or Liens
incidental to the conduct of business or to the ownership of properties that do
not in the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business;


 


(15)         leases, licenses,
subleases or sublicenses (including, without limitation, licenses and
sublicenses of intellectual property) granted to others in the ordinary course
of business that do not (x) interfere in any material respect with the business
of the Company or any of its material Restricted Subsidiaries or (y) secure any
Indebtedness;


 


(16)         the rights reserved or
vested in any Person by the terms of any lease, license, franchise, grant or
permit held by the Company or any of its Restricted Subsidiaries or by a statutory
provision, to terminate any such lease, license, franchise, grant or permit, or
to require annual or periodic payments as a condition to the continuance
thereof;


 


(17)         banker’s Liens, rights of
set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depositary institution or securities intermediary;


 


(18)         Liens arising from
Uniform Commercial Code financing statement filings regarding operating leases
or consignments entered into by the Company and its Restricted Subsidiaries in
the ordinary course of business;


 


(19)         Liens on accounts
receivable and related assets incurred in connection with Receivable Facility
incurred pursuant to clause (18) of the second paragraph of Section 4.9;


 


(20)         Liens (i) of a
collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary
course of business and (iii) in favor of a banking institution arising as
a matter of law 


 


30

















 


encumbering
deposits or securities accounts (including the right of set-off) and which are
within the general parameters customary in the banking industry;


 


(21)         Liens encumbering
reasonable customary initial deposits and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts incurred in
the ordinary course of business and not for speculative purposes;


 


(22)         Liens that are
contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Company or any Restricted Subsidiary to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of the Company
and its Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into by the Company or any Restricted Subsidiary in
the ordinary course of business;


 


(23)         Liens solely on any cash
earnest money deposits made by the Company or any of its Restricted
Subsidiaries in connection with any letter of intent or purchase agreement
permitted under this Indenture;


 


(24)         Liens with respect to the
assets of a Restricted Subsidiary that is not a Guarantor securing Indebtedness
of such Restricted Subsidiary incurred in accordance with Section 4.9;


 


(25)         Liens to secure
Indebtedness incurred pursuant to clauses (20) and (24) of the second paragraph
of Section 4.9 ;


 


(26)         Liens arising by
operation of law under Article 2 of the Uniform Commercial Code in favor
of a reclaiming seller of goods or buyer of goods;


 


(27)         security given to a
public or private utility or any governmental authority as required in the ordinary
course of business;


 


(28)         landlords’ and lessors’
Liens in respect of rent not in default for more than sixty days or the
existence of which, individually or in the aggregate, would not reasonably be expected
to result in a material adverse effect;


 


(29)         Liens in favor of customs
and revenues authorities imposed by applicable law arising in the ordinary
course of business in connection with the importation of goods and securing
obligations (i) with respect to customs duties in the ordinary course of
business, (ii) that are not overdue by more than sixty (60) days,
(iii) (A) that are being contested in good faith by appropriate
proceedings, (B) the Company or Restricted Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and
(C) such contest effectively suspends collection of the contested
obligation and enforcement of any Lien securing such obligation, or
(iv) the existence of which would not reasonably be expected to result in
a material adverse effect;


 


(30)         Liens on securities which
are the subject of repurchase agreements incurred in the ordinary course of
business;


 


31
















 


(31)         Liens on the Capital
Stock of Unrestricted Subsidiaries;


 


(32)         pledges or deposits made
in the ordinary course of business to secure liability to insurance carriers
and Liens on insurance policies and the proceeds thereof (whether accrued or
not), rights or claims against an insurer or other similar asset securing
insurance premium financings permitted under clause (21) of the second
paragraph of Section 4.9.


 


(33)         any encumbrance or
retention (including put and call agreements and rights of first refusal) with
respect to the Equity Interests of any joint venture or similar arrangement
pursuant to the joint venture or similar agreement with respect to such joint
venture or similar agreement;


 


(34)         Liens consisting of
customary contractual restrictions on cash and Cash Equivalents;


 


(35)         Liens on property subject
to Sale and Lease-Back Transactions permitted hereunder and general intangibles
related thereto;


 


(36)         possessory Liens in favor
of brokers and dealers arising in connection with the acquisition or
disposition of Investments owned as of the date hereof and other Permitted
Investments; provided that such Liens (a) attach only to such
Investments or other Investments held by such broker or dealer and (b) secure
only obligations incurred in the ordinary course of business and arising in
connection with the acquisition or disposition of such Investments and not any
obligation in connection with the incurrence of Indebtedness or margin
financing;


 


(37)         Liens attaching solely to
cash earnest money deposits in connection with any letter of intent or purchase
agreement in connection with a Permitted Investment; and


 


(38)         any interest or title of
a licensor, a sublicensor, lessor or sublessor under any license or operating
or true lease agreement.


 


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


 


“Preferred Stock” means any Equity
Interest with preferential rights of payment of dividends upon liquidation,
dissolution or winding up; provided that in no event shall Equity
Interests outstanding as of the Issue Date or issued thereafter to any officer,
director, employee or consultant of the Company or any Restricted Subsidiary in
respect of services provided to the Company or a Restricted Subsidiary in the
ordinary course of business approved by Board of Directors of the Company be
considered Preferred Stock.


 


“Purchase Amount” has the meaning set
forth in the definition of “Offer to Purchase.”


 


“Purchase Date” has the meaning set
forth in the definition of “Offer to Purchase.”


 


 


32

















 


“Purchase Price” has the meaning set
forth in the definition of “Offer to Purchase.”


 


“Qualified Proceeds” means assets that
are used or useful in, or Capital Stock of any Person engaged in, a Permitted
Business; provided that the fair market value of any such assets or
Capital Stock shall be determined by the Board of Directors of the Company in
good faith.


 


“Rating Agencies” means
(1) S&P and Moody’s or (2) if S&P or Moody’s or both of them
are not making ratings publicly available, a nationally recognized statistical
rating organization within the meaning of Rule 15c3-1(c)(2) under the
Exchange Act, as the case may be, selected by the Company, which will be
substituted for S&P or Moody’s or both, as the case may be.


 


“Receivables Facility” means any of
one or more financing facilities as amended, supplemented, modified, extended,
renewed, restated or refunded from time to time, the obligations of which are
non-recourse (except for customary representations, warranties, covenants and
indemnities made in connection with such facilities) to the Company or any of
its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to
which the Company or any of its Restricted Subsidiaries sells their accounts
receivable or rights to future advisory fees (including Rule 12b-1 fees) to
either (A) a Person that is not a Restricted Subsidiary or (B) a
Receivables Subsidiary that in turn sells its accounts receivable or rights to
future advisory fees to a Person that is not a Restricted Subsidiary.


 


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


 


“Receivables Subsidiary” means any
subsidiary formed for the purpose of, and that solely engages only in one or
more Receivables Facilities and other activities reasonably related thereto.


 


“Record
Date” for the interest or Additional Interest, if any, payable on
any applicable Interest Payment Date means the last May 1 or
November 1 (whether or not on a Business Day) preceding such Interest
Payment Date.


 


“Redemption Price,” when used with
respect to any Note to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.


 


“Registration Rights Agreement” means
the (i) Registration Rights Agreement dated as of the Issue Date between the
Company, the Guarantors and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Deutsche Bank Securities Inc., Wachovia Capital Markets, LLC and
Morgan Stanley & Co. Incorporated, as representatives of the initial
purchasers relating to the Notes issued on the Issue Date and (ii) any other
registration rights agreement entered into in connection with an issuance of
Additional Notes in a private offering after the Issue Date.


 


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


 


33

















 


“Regulation S Global Note Legend” means
the legend identified as such in Exhibit A hereto.


 


“Related Business Assets” means assets
(other than cash or Cash Equivalents) used or useful in a Permitted Business, provided
that any assets received by the Company or a Restricted Subsidiary in exchange
for assets transferred by the Company or a Restricted Subsidiary shall not be
deemed to be Related Business Assets if they consist of securities of a Person,
unless upon a receipt of the securities of such Person, such Person would
become a Restricted Subsidiary.


 


“Related Party” means (a) with
respect to Madison Dearborn Partners, LLC or any other Person making an
investment in Parent on the Issue Date, (i) any investment fund controlled
by or under common control with Madison Dearborn Partners, LLC or such other
Person making an investment in Parent on the Issue Date, as the case may be,
any officer, director or person performing an equivalent function of the
foregoing persons, or any entity controlled by any of the foregoing Persons and
(ii) any spouse or lineal descendant (including by adoption and
stepchildren) of the officers and directors referred to clause (a)(i); and
(b) with respect to any officer of the Company or its Subsidiaries,
(i) any spouse or lineal descendant (including by adoption and stepchildren)
of the officer and (ii) any trust, corporation or partnership or other
entity, in each case to the extent not an operating company, of which an 80% or
more controlling interest is held by the beneficiaries, stockholders, partners
or owners who are the officer, any of the persons described in clause
(b)(i) above or any combination of these identified relationships.


 


“Representative”
means any agent or representative in respect of any Designated Senior Indebtedness;
provided that if, and
for so long as, any Designated Senior Indebtedness lacks such agent or
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding
principal amount of such Designated Senior Indebtedness.


 


“Resale Restriction Termination Date”
means for any Transfer Restricted Note (or beneficial interest therein), that
is (a) not a Regulation S Global Note (or Certificated Note issued in
respect thereof pursuant to Section 2.6(b)), two years (or such
other period specified in Rule 144(k)) from the Issue Date or, if any
Additional Notes that are Transfer Restricted Notes have been issued before the
Resale Restriction Termination Date for any Transfer Restricted Notes, from the
latest such original issue date of such Additional Notes, and (b) a
Regulation S Global Note (or Certificated Note issued in respect thereof
pursuant to Section 2.6(b)), the date on or after the 40th
consecutive day beginning on and including the later of (i) the day on which
any Notes represented thereby are offered to persons other than distributors
(as defined in Regulation S) pursuant to Regulation S and
(ii) the issue date for such Notes.


 


“Responsible Officer” means, when used
with respect to the Trustee, any officer assigned to the Corporate Trust Office
of the Trustee having 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.


 


34

















 


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


 


“Restricted Notes Legend” means the
legend identified as such in Exhibit A hereto.


 


“Restricted Subsidiary” means, at any
time, any direct or indirect Subsidiary of the Company (including any Foreign
Subsidiary) that is not then an Unrestricted Subsidiary;  provided,  however, that upon the occurrence of an Unrestricted
Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be
included in the definition of Restricted Subsidiary.


 


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


 


“Sale
and Lease-Back Transaction” means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
real or tangible personal property, which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person in
contemplation of such leasing.


 


“Secured Indebtedness” means, as at
any date of determination, an amount equal to (a) Consolidated Total
Indebtedness minus (b) to the extent included in Consolidated Total Indebtedness,
(i) the amount of any Capital Stock and (ii) if any Indebtedness and any
guarantee thereof is not secured by any Lien, the amount of such Indebtedness.


 


“Secured Indebtedness Leverage Ratio”
means, with respect to any Person, at any date the ratio of (i) the aggregate
amount of Secured Indebtedness of such Person as of such date of calculation to
(ii) EBITDA of such Person for the four full fiscal quarters for which
internal financial statements are available immediately preceding such date on
which such additional Indebtedness is incurred. In the event that the Company
or any of its Restricted Subsidiaries incurs or redeems any Indebtedness (other
than incurrences or redemptions of working capital borrowings under revolving
credit facilities in the ordinary course of business) subsequent to the end of
the period for which the Secured Indebtedness Leverage Ratio is being
calculated but prior to the event for which the calculation of the Secured
Indebtedness Leverage Ratio is made (the “Secured Leverage Calculation Date”),  then the Secured Indebtedness Leverage Ratio shall be calculated
using the aggregate amount of Secured Indebtedness as of the Secured Leverage
Calculation Date. The Secured Indebtedness Leverage Ratio shall be calculated
in a manner consistent with the definition of “Total Leverage Ratio,” including
any pro forma calculations to EBITDA (including for acquisitions).


 


“Secured Leverage Calculation Date”
has the meaning set forth in the definition of “Secured Indebtedness Leverage Ratio.”


 


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


 


“Seed Capital Investment” means each
Investment Vehicle in which the Company or one or more of its Restricted Subsidiaries
has invested or is investing “seed” or “early stages” capital in the ordinary
course of business.


 


35

















 


 “Significant
Subsidiary” means any Restricted Subsidiary that would be “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 date
hereof.


 


“Sponsor” means Madison Dearborn
Partners, LLC and its Affiliates (other than any portfolio company thereof).


 


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


 


“Subordinated Indebtedness” means
(a) with respect to the Company, any Indebtedness of the Company that is
by its terms subordinated in right of payment to the Notes and (b) with
respect to any Guarantor of the Notes, any Indebtedness of such Guarantor that
is by its terms subordinated in right of payment to its Guarantee of the Notes.


 


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


 


(a)           any corporation,
association or other business entity, of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and


 


(b)           any partnership, joint
venture, limited liability company or similar entity of which (x) more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise and
(y) such Person or any Wholly Owned Restricted Subsidiary of such Person
is a controlling general partner or otherwise controls such entity;


 


provided
that, in all cases, Subsidiary shall not include any Investment Vehicle even if
any such entity would be consolidated with the Company under GAAP.


 


“Subsidiary Guarantors” means the
Guarantors other than Parent or any other direct or indirect parent of the
Company that delivers a Guarantee.


 


“TIA” means the Trust Indenture Act of
1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended, as in effect on the date hereof.


 


“Total Assets” means total assets of
the Company and its Restricted Subsidiaries on a consolidated basis prepared in
accordance with GAAP, shown on the most recent balance sheet of the Company and
its Restricted Subsidiaries as may be expressly stated.


 


36

















 


“Total Leverage Ratio”  means, with respect to any Person for any period consisting
of such Person and its Restricted Subsidiaries’ most recently ended four fiscal
quarters for which internal financial statements are available, the ratio of
Total Consolidated Indebtedness of such Person as of the end of such period to
the EBITDA (as calculated below) of such Person for such period. In the event
that the Company or any Restricted Subsidiary incurs, assumes, guarantees or
repays any Indebtedness (other than incurrences or repayments of working
capital borrowings under revolving credit facilities in the ordinary course of
business) or issues or redeems Disqualified Stock or Preferred Stock, in each
case subsequent to the end of the period for which the Total Leverage Ratio is
being calculated but prior to the event for which the calculation of the Total
Leverage Ratio is made (the “Calculation Date”),  then
the Total Leverage Ratio shall be calculated using the aggregate amount of
Total Consolidated Indebtedness as of the Calculation Date.


 


If Investments, acquisitions, dispositions,
mergers or consolidations outside the ordinary course of business have been
made by the Company or any Restricted Subsidiary during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Calculation Date, then the Total Leverage Ratio shall
be calculated on a pro forma basis assuming that all such Investments, acquisitions,
dispositions, mergers or consolidations (and the change in EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period.


 


If since the beginning of such period any
Person (that subsequently became a Restricted Subsidiary or was merged with or
into the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Investment, acquisition, disposition, merger or consolidation
that would have required adjustment pursuant to this definition, then the Total
Leverage Ratio shall be calculated giving pro forma effect thereto for such
period as if such Investment, acquisition, disposition, merger or consolidation
had occurred at the beginning of the applicable four-quarter period.


 


For purposes of this definition, whenever pro
forma effect is to be given to an Investment, acquisition, disposition, merger
or consolidation (including, without limitation, the Transactions) and the
amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of
the Company and shall comply with the requirements of Rule 11-02 of Regulation
S-X promulgated by the Commission, except that such pro forma calculations may
include synergies, operating improvements and operating expense reductions for
such period resulting from the transaction which is being given pro forma
effect that (A) have been realized or (B) for which the steps necessary for
realization have been taken (or are taken concurrently with such transaction)
or (C) for which the steps necessary for realization are reasonably expected to
be taken within the twelve-month period following such transaction and, in each
case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction
of costs related to administrative functions, (c) reduction of costs related to
leased or owned properties and (d) reductions from the consolidation of
operations and streamlining of corporate overhead, provided  that, in each case, such adjustments are set forth in an Officers’
Certificate signed by the Company’s chief financial officer and another Officer
which states (i) the amount of such adjustment or adjustments, (ii) in the case
of item (B) or (C) above, that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Officers executing such Officers’
Certificate at the time of


 


37

















 


such execution
and (iii) that any related incurrence of Indebtedness is permitted pursuant to
this Indenture.


 


“Total Net Tangible Assets” means
total assets of the Company and its Restricted Subsidiaries, less all goodwill,
trade names, trademarks, patents and any other like intangibles, all on a
consolidated basis prepared in accordance with GAAP, shown on the most recent
balance sheet of the Company and its Restricted Subsidiaries as may be
expressly stated.


 


“Transaction Expenses” means any fees
or expenses incurred or paid by the Company or any Restricted Subsidiary in
connection with the Transactions, including payments to officers, employees and
directors as change of control payments, severance payments, special or
retention bonuses and charges for repurchase or rollover of, or modifications
to, stock options or other equity interests.


 


“Transactions” means (i) the
transactions contemplated by the Acquisition Agreement, (ii) the entry
into the Credit Agreement and incurrence of Indebtedness thereunder on the
Issue Date by the Company and the guarantors thereunder, (iii) the
issuance of the Notes and the provision of Guarantees by the Guarantors,
(iv) the refinancing of certain existing indebtedness of the Company as
contemplated in the Offering Memorandum, (v) the payment of fees and
expenses related to each of the foregoing and (vi) all other transactions
relating to any of the foregoing in each case, as contemplated as of the Issue
Date pursuant to the terms of the Acquisition Agreement.


 


“Transfer Restricted Notes” means
Notes that bear or are required to bear the Restricted Notes Legend.


 


“Treasury Rate” means, as of the
applicable redemption date, the yield to maturity as of such redemption date of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H. 15 (519)
that has become publicly available at least two (2) Business Days prior to such
redemption date (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the
period from such redemption date to November 15, 2011; provided, however,
that if the period from such redemption date to November 15, 2011 is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.


 


“Trustee” has the meaning set forth in
the preamble to this Indenture.


 


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


 


“Unrestricted Global Note” means one
or more Global Notes that bears a Global Note Legend and that is deposited with
or on behalf of and registered in the name of a Depositary, representing Notes
that do not bear the Private Placement Legend.


 


“Unrestricted Subsidiary” means
(i) any Subsidiary of the Company that at the time of determination is an
Unrestricted Subsidiary (as designated by the Board of Directors of the
Company, as provided below) and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board


 


38

















 


of Directors
of the Company may designate any Subsidiary of the Company (including any existing
Subsidiary and any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Equity Interests or Indebtedness of, or owns or holds any Lien on, any
property of, the Company or any Subsidiary of the Company (other than any
Unrestricted Subsidiary of the Subsidiary to be so designated); provided
that (a) any Unrestricted Subsidiary must be an entity of which shares of
the Capital Stock or other equity interests (including partnership interests)
entitled to cast at least a majority of the votes that may be cast by all
shares or equity interests having ordinary voting power for the election of
directors or other governing body are owned, directly or indirectly, by the
Company, (b) such designation complies with Section 4.7 and
(c) each of (I) the Subsidiary to be so designated and (II) its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness pursuant to which the lender has recourse
to any of the assets of the Company or any Restricted Subsidiary (other than
the Capital Stock of such Subsidiary to be so designated). The Board of
Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided  that,
immediately after giving effect to such re-designation, no Event of Default
shall have occurred and be continuing and any Indebtedness of, or Lien existing
on assets of, such Subsidiary existing at the time of such redesignation is
permitted pursuant to the covenants described under Sections 4.9 and 4.12
Any such designation or redesignation by the Board of Directors of the Company
shall be notified by the Company to the Trustee by promptly filing with such
Trustee a copy of the Board Resolution giving effect to such designation or
redesignation and an Officers’ Certificate certifying that such designation or
resignation, as the case may be, complied with the foregoing provisions.


 


“U.S. Dollar Equivalent” means with
respect to any monetary amount in a currency other than U.S. dollars, at any
time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars
at the spot rate for the purchase of U.S. dollars with the applicable foreign
currency as published in The Wall Street Journal in the “Exchange Rates”
column under the heading “Currency Trading” on the date two (2) Business Days
prior to such determination.


 


Except as described in Section 4.9,
whenever it is necessary to determine whether the Company has complied with any
covenant in this Indenture or a Default has occurred and an amount is expressed
in a currency other than U.S. dollars, such amount will be treated as the U.S.
Dollar Equivalent determined as of the date such amount is initially determined
in such currency.


 


“U.S. Government Securities” means
securities that are


 


(a)           direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or


 


(b)           obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America,


 


39

















 


which, in either case, are not callable or redeemable
at the option of the issuers thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government Securities
or a specific payment of principal of or interest on any such U.S. Government
Securities held by such custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Securities or the specific payment of principal of or interest
on the U.S. Government Securities evidenced by such depository receipt.


 


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


 


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


 


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


 


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


 


“Wholly Owned Restricted Subsidiary”
is any Wholly Owned Subsidiary that is a Restricted Subsidiary.


 


“Wholly Owned Subsidiary” of any
Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock
or other ownership interests of which (other than directors’ qualifying shares
and shares issued to foreign nationals under applicable law) shall at the time
be owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.


 


SECTION 1.2         Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
  “Acceleration Notice”

  	
   

  	
  6.2

  	
   

  
	
  “Act”

  	
   

  	
  12.14(a)

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.6(a)

  	
   

  
	
  “Adjusted Net Assets” 

  	
   

  	
  10.6

  	
   

  
	
  “Authorization Order”

  	
   

  	
  2.2

  	
   

  
	
  “Change of Control Payment”

  	
   

  	
  4.14

  	
   

  
	
  “Change of Control Payment Date” 

  	
   

  	
  4.14

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.3

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.1

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  	
   

  



 


40

















 


	
  “Funding Guarantor” 

  	
   

  	
  10.6

  	
   

  
	
  “Guarantee Blockage Notice

  	
   

  	
  11.3

  	
   

  
	
  “Guarantee Payment Blockage Period

  	
   

  	
  11.3

  	
   

  
	
  “Guarantor Payment Default”

  	
   

  	
  11.3

  	
   

  
	
  “incur”

  	
   

  	
  4.9

  	
   

  
	
  “Initial Notes” 

  	
   

  	
  2.2

  	
   

  
	
  “Interest Payment Date”

  	
   

  	
  Exhibit A

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.2

  	
   

  
	
  “Limited Non-Guarantor Debt Exceptions”

  	
   

  	
  4.9

  	
   

  
	
  “Merger”

  	
   

  	
  Recitals

  	
   

  
	
  “Non-Guarantor Payment Default”

  	
   

  	
  11.3

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.9

  	
   

  
	
  “QIBs”

  	
   

  	
  2.1(b)

  	
   

  
	
  “QIB Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Permitted Debt” 

  	
   

  	
  4.9

  	
   

  
	
  “Refinancing Indebtedness” 

  	
   

  	
  4.9

  	
   

  
	
  “Refunding Capital Stock” 

  	
   

  	
  4.7

  	
   

  
	
  “Registrar”

  	
   

  	
  2.3

  	
   

  
	
  “Regulation S”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Regulation S Global Note”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Restricted Payment” 

  	
   

  	
  4.7

  	
   

  
	
  “Retired Capital Stock” 

  	
   

  	
  4.7

  	
   

  
	
  “Rule 144A”

  	
   

  	
  2.1(b)

  	
   

  
	
  “Successor Company” 

  	
   

  	
  5.1

  	
   

  
	
  “Successor Guarantor” 

  	
   

  	
  10.5(a)

  	
   

  
	
  “Successor Parent Guarantor” 

  	
   

  	
  10.5(b)

  	
   

  



 


SECTION 1.3         Incorporation by
Reference of Trust Indenture Act. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in, and made a
part of, this Indenture.


 


The following TIA terms have the following
meanings:


 


“indenture
securities” means the Notes and any Guarantee;


 


“indenture security holder” means
a Holder;


 


“indenture
to be qualified” means this Indenture;


 


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


 


“obligor”
on the Notes means the Company and any successor obligor upon the Notes or any
Guarantor.


 


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


 


41

















 


SECTION 1.4         Rules of Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3)           “or” is not exclusive;


 


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


 


(5)           “will” shall be
interpreted to express a command;


 


(6)           unless otherwise
specified, any reference to Section or Article refers to such Section or
Article of this Indenture;


 


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


 


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


 


ARTICLE II


 


THE NOTES


 


SECTION 2.1         Form and Dating.


 


The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A
attached hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage; provided, that the text of any such
notations, legends or endorsements shall be delivered to the Trustee in writing
by the Company in a form acceptable to the Company. Each Note shall be dated
the date of its authentication. The Notes initially shall be issued only in
minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof. The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Trustee and the Paying Agent and Registrar, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.


 


(a)           The Notes shall be issued initially in the
form of one or more Global Notes substantially in the form attached as Exhibit A
hereto, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee as custodian for the Depositary, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.


 


42





















 


Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the principal aggregate amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby
shall be made by the Registrar or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.6 hereof. The aggregate amount outstanding of
any Global Note shall be reflected on the books and records of the Trustee.


 


Except as set forth in Section 2.6
hereof, the Global Notes may be transferred, in whole and not in part, only to
another nominee of the Depositary or to a successor of the Depositary or its
nominee.


 


(b)           The Initial Notes are being issued by the
Company only (i) to “qualified institutional buyers” (as defined in
Rule 144A under the Securities Act (“Rule 144A”)) (“QIBs”)
or (ii) in reliance on Regulation S under the Securities Act (“Regulation S”).
After such initial offers, Initial Notes that are Transfer Restricted Notes may
be transferred to QIBs, in reliance on Rule 144A or outside the United
States pursuant to Regulation S or to the Company, in accordance with
certain transfer restrictions. Initial Notes that are offered in reliance on
Rule 144A shall be issued in the form of one or more permanent Global
Notes substantially in the form set forth in Exhibit A (the “QIB
Global Note”) deposited with the Trustee, as Note Custodian, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.


 


Initial Notes that are offered in offshore
transactions in reliance on Regulation S shall be issued in the form of
one or more permanent Global Notes substantially in the form set forth in Exhibit A
(the “Regulation S Global Note”) deposited with the Trustee, as
Note Custodian, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The QIB Global Note and the Regulation S Global
Note shall each be issued with separate CUSIP numbers. The aggregate principal
amount of each Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as Note Custodian. Transfers of
Notes between QIBs and to or by purchasers pursuant to Regulation S shall
be represented by appropriate increases and decreases to the respective amounts
of the appropriate Global Notes, as more fully provided in Section 2.16.


 


(c)           Section 2.1(b) shall apply only
to Global Notes deposited with or on behalf of the Depositary.


 


The Company shall execute and the Trustee
shall, in accordance with Section 2.1(b) and this Section 2.1(c),
authenticate and deliver the Global Notes that (i) shall be registered in
the name of the Depositary or the nominee of the Depositary and (ii) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instructions or held by the Trustee as Note Custodian for the Depositary.


 


43

















 


The Trustee shall have no responsibility or
obligation to any Beneficial Owner that is a member of (or a participant in)
DTC or any other Person with respect to the accuracy of the records of DTC (or
its nominee) or of any participant or member thereof, with respect to any ownership
interest in the Notes or with respect to the delivery of any notice (including
any notice of redemption) or the payment of any amount or delivery of any Notes
(or other security or property) under or with respect to the Notes. The Trustee
may rely (and shall be fully protected in relying) upon information furnished
by DTC with respect to its members, participants and any beneficial owners in
the Notes.


 


(d)           Notes issued in certificated form shall be
substantially in the form of Exhibit A attached hereto.


 


SECTION 2.2         Execution and
Authentication.


 


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


 


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


 


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


 


The Trustee shall authenticate (i) on
the Issue Date, Notes for original issue in an aggregate principal amount not
to exceed $785,000,000 (the “Initial Notes”), (ii) Additional Notes
in an unlimited amount (so long as not otherwise prohibited by the terms of
this Indenture, including, without limitation, Section 4.9),
(iii) Exchange Notes or private exchange notes (x) in exchange for a
like principal amount of Initial Notes or (y) in exchange for a like principal
amount of Additional Notes, in each case, upon a written order of the Company
in the form of a certificate signed by one Officer of the Company (an “Authentication
Order”) directing the Trustee to authenticate the Notes and certifying that
all conditions precedent to the issuance of the Notes contained herein have
been complied with, accompanied by an Opinion of Counsel in a form reasonably
satisfactory to the Trustee, to the effect that all such conditions precedent
have been satisfied. Each such Authentication Order shall specify the principal
amount and registered holder of each Note to be authenticated and the date on
which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Exchange Notes, private exchange notes or Additional Notes and whether
the Notes are to be issued as certificated Notes or Global Notes or such other
information as the Trustee may reasonably request.


 


The Company may appoint an authenticating
agent reasonably acceptable to the Trustee 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 Holders or the Company or an
Affiliate of the Company.


 


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SECTION 2.3         Registrar; Paying
Agent.


 


The Company shall maintain (i) an office
or agency within the City and State of New York where Notes may be presented
for registration of transfer or for exchange (“Registrar”) and
(ii) an office or agency where Notes may be presented for payment to a
Paying Agent. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term “Registrar” includes any co-registrar and
the term “Paying Agent” includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder.


 


The Company shall promptly notify the Trustee
in writing, and the Trustee shall notify the Holders, of the name and address
of any Agent not a party to this Indenture. The Company 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
of this Indenture that relate to such Agent. If the Company fails to appoint or
maintain a Registrar or 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 7.7 hereof. The Company or
any of its Restricted Subsidiaries may act as Paying Agent or Registrar, except
that for the purposes of Articles Three and Eight and Sections 4.10 and
4.14, neither the Company nor any Affiliate of the Company shall act as Paying
Agent.


 


The Company initially appoints the Trustee to
act as the Note Custodian, Registrar and Paying Agent.


 


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


 


SECTION 2.4         Paying Agent To Hold
Money in Trust.


 


The Company shall require each Paying Agent
not a party to this Indenture to agree in writing that the Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest,
if any, or interest on the Notes, and shall notify the Trustee of any default
by the Company in making any such payment. While any such default continues,
the Trustee may require a Paying Agent not a party to this Indenture to pay all
money held by it to the Trustee. The Company at any time may require a Paying
Agent not a party to this Indenture to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Restricted Subsidiary) shall have no further liability for the money. If
the Company or a Restricted Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon the occurrence of events specified in Section 6.1(7)
hereof, the Trustee shall serve as Paying Agent for the Notes.


 


SECTION 2.5         Holder Lists.


 


The Registrar shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIA § 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee


 


45

















 


at least seven
(7) Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders, including the aggregate principal amount of the Notes held by each
Holder thereof, and the Company shall otherwise comply with TIA § 312(a).


 


SECTION 2.6         Book-Entry Provisions
for Global Notes.


 


(a)           Each Global Note shall (i) be
registered in the name of the Depositary for such Global Notes or the nominee
of such Depositary, (ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as required by Section 2.6(e).


 


Members of, or participants in, the
Depositary (“Agent Members”) shall have no rights under this Indenture
with respect to any Global Note held on their behalf by the Depositary, or the Trustee
as Note Custodian, or under the Global Note, and the Depositary will be treated
by the Company, the Trustee Note Custodian and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee, Note
Custodian or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.


 


(b)           Transfers of a Global Note shall be limited
to transfers of such Global Note in whole, but not in part, to the Depositary,
its successors or the irrespective nominees. Interests of beneficial owners in
a Global Note may be transferred in accordance with Section 2.16
and the rules and procedures of the Depositary. In addition, Certificated Notes
shall be transferred to all beneficial owners (or the requesting beneficial
owners, in the case of clause (ii)) in exchange for their beneficial
interests only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Notes or the
Depositary ceases to be a “clearing agency” registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days
of such notice or (ii) an Event of Default of which a Responsible Officer
of the Trustee has received actual written notice at the Corporate Trust Office
of the Trustee has occurred and is continuing and the Registrar has received a
request from any beneficial owner of an interest in the Global Note (subject to
the fourth paragraph of Section 2.1(c) hereof) to issue such
Certificated Notes.


 


(c)           In connection with the transfer of the
entire Global Note to beneficial owners pursuant to clause (b) of this Section
2.6, such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in such Global Note an equal aggregate principal
amount of Certificated Notes of authorized denominations.


 


(d)           The registered holder of a Global Note may
grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interest through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Notes.


 


46





















 


(e)           Each Global Note shall bear the Global Note
Legend on the face thereof.


 


(f)            At such time as all beneficial interests in
Global Notes have been exchanged for Certificated Notes, redeemed, repurchased
or cancelled, all Global Notes shall be returned to or retained and cancelled
by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for Certificated Notes, redeemed, repurchased or cancelled, 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 the Note Custodian, at the direction of the Trustee, to reflect such
reduction.


 


(g)           General Provisions Relating to Transfers
and Exchanges.


 


(1)           To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Global
Notes and Certificated Notes upon receipt by the Trustee of a written order by
the Company signed by one Officer of the Company in accordance with Section
2.2.


 


(2)           No service charge shall be made to a Holder
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any stamp or transfer tax or similar
governmental charge payable in connection therewith (other than any such stamp
or transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.2, 2.10, 3.7, 4.10, 4.14
and 9.5 hereto).


 


(3)           All Global Notes and Certificated Notes
issued upon any registration of transfer or exchange of Global Notes or
Certificated Notes shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Certificated Notes surrendered upon such registration of
transfer or exchange.


 


(4)           The Registrar shall not be required
(A) to issue, to register the transfer of or to exchange Notes during a
period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.2 hereof and
ending at the close of business on the day of selection, (B) to register
the transfer of or to exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in part, or
(C) to register the transfer of or to exchange a Note between a record
date and the next succeeding interest payment date.


 


(5)           Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal
of, premium, if any, and interest and Additional Interest, if any, on such
Notes and for all other purposes, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary.


 


(6)           The Trustee shall authenticate Global Notes
and Certificated Notes in accordance with the provisions of Section 2.2
hereof. Except as provided in Section 2.6(b), neither the Trustee
nor the Registrar shall authenticate or deliver any Certificated Note in
exchange for a Global Note.


 


47





















 


(7)           Each Holder agrees to provide reasonable
indemnity to the Company and the Trustee against any liability that may result
from the transfer, exchange or assignment of such Holder’s Note in violation of
any provision of this Indenture and/or applicable United States federal or
state securities law.


 


(8)           The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers between or
among Agent Members or beneficial owners of interests in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.


 


(h)           Exchange Offer. Upon the occurrence
of the Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue an Officers’ Certificate stating that such Registration
Statement has been declared effective and deliver an Authentication Order to
the Trustee, and, upon receipt of an Authentication Order in accordance with Section 2.2,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that
(x) they are not affiliates (as defined in Rule 144) of the Company,
(y) they are not engaged in, and do not intend to engage in, and have no
arrangement or understanding with any Person to participate in, a distribution
of the Exchange Notes to be issued in the Exchange Offer and (z) they are
acquiring the Exchange Notes in their ordinary course of business and
(ii) Unrestricted Definitive Notes in an aggregate principal amount equal
to the principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount of the Restricted Global
Notes to be reduced accordingly, and the Trustee shall deliver to the Persons
designated by the Holders of Restricted Global Notes or Restricted Definitive
Notes so accepted the Unrestricted Global Notes or Unrestricted Definitive
Notes issued and authenticated in accordance with the preceding sentence in the
appropriate principal amount.


 


SECTION 2.7         Replacement Notes.


 


If any mutilated Note is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by one Officer of the
Company, shall authenticate a replacement Note if the Trustee’s requirements are
met. In connection with the replacement of a Note, the Company and the Trustee
will require an indemnity bond from the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss, liability or expense that
any of them may suffer if a Note is replaced and subsequently presented or
claimed for payment. The Company and the Trustee may charge the Holder for
their expenses in replacing a Note.


 


48

















 


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


 


SECTION 2.8         Outstanding Notes.


 


The Notes outstanding at any time are all the
Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and
those described in this Section 2.8 as not outstanding. Except as
set forth in Section 2.9 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.


 


If a Note is replaced pursuant to Section 2.7
hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.


 


If the principal amount of any Note is
considered paid under Section 4.1 hereof, it ceases to be
outstanding and interest on it ceases to accrue.


 


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


 


SECTION 2.9         Treasury Notes.


 


In determining whether the Holders of the
required aggregate principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company or by any Affiliate of the
Company shall be considered as though not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes shown on the register or identified by
the Company in an Officers’ Certificate as being owned shall be so disregarded.
Notwithstanding the foregoing, Notes that are to be acquired by the Company or
an Affiliate of the Company pursuant to an exchange offer, tender offer or
other agreement shall not be deemed to be owned by such entity until legal
title to such Notes passes to such entity.


 


SECTION 2.10       Temporary Notes.


 


Until Certificated Notes are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes upon
a written order of the Company signed by one Officer of the Company in
accordance with Section 2.2. Temporary Notes shall be substantially in
the form of Certificated Notes but may have variations that the Company
considers appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee shall upon receipt of a written order of
the Company signed by one Officer authenticate Certificated Notes in exchange
for temporary Notes.


 


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


 


49

















 


SECTION 2.11       Cancellation.


 


The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder or which the Company may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly cancelled by the Trustee. All Notes
surrendered for registration of transfer, exchange or payment, if surrendered
to any Person other than the Trustee, shall be delivered to the Trustee. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation. Subject to Section 2.7
hereof, the Company may not issue new Notes to replace Notes that it has
redeemed or paid or that have been delivered to the Trustee for cancellation. All
cancelled Notes held by the Trustee shall be disposed of in accordance with its
customary practice, and certification of their disposal delivered to the
Company.


 


SECTION 2.12       Defaulted Interest.


 


If the Company defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, which date shall
be at the earliest practicable date but in all events at least five
(5) Business Days prior to the payment date, in each case at the rate
provided in the Notes and in Section 4.1 hereof. The Company shall
fix or cause to be fixed each such special record date and payment date and
shall promptly thereafter notify the Trustee of any such date. At least
15 days before the special record date, the Company (or the Trustee, in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.


 


SECTION 2.13       Record Date.


 


Unless otherwise set forth in this Indenture,
the record date for purposes of determining the identity of Holders 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       Computation of Interest.


 


Interest and Additional Interest, if any, on
the Notes shall be computed on the basis of a 360-day year comprised of twelve
30-day months.


 


SECTION 2.15       CUSIP Number.


 


The Company 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 Company shall promptly notify the Trustee of any change in the CUSIP
number.


 


50
















 


SECTION 2.16       Special Transfer
Provisions.


 


Each Initial Note and each Additional Note
issued pursuant to an exemption from registration under the Securities Act will
constitute a Transfer Restricted Note and be required to bear the Restricted
Notes Legend until the expiration of the Resale Restriction Termination Date
therefor, unless and until such Transfer Restricted Note is transferred or
exchanged pursuant to an effective registration statement under the Securities
Act. The following provisions shall apply to the transfer of a Transfer
Restricted Note:


 


(a)           Transfers
to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a Transfer Restricted Note (other than
pursuant to Regulation S):


 


(i)            The Registrar shall register the transfer
of a Transfer Restricted Note by a Holder to a QIB if such transfer is being
made by a proposed transferor who has provided the Registrar with (a) an
appropriately completed certificate of transfer in the form attached to the
Note and (b) a letter substantially in the form set forth in Exhibit C
hereto.


 


(ii)           If
the proposed transferee is an Agent Member and the Transfer Restricted Note to
be transferred consists of an interest in the Regulation S Global Note,
upon receipt by the Registrar of (x) the items required by
paragraph (i) above and (y) instructions given in accordance with the
Depositary’s and the Registrar’s procedures therefor, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the QIB Global Note in an amount equal to the principal amount of the
beneficial interest in the Regulation S Global Note to be so transferred,
and the Registrar shall reflect on its books and records the date and an
appropriate decrease in the principal amount of such Regulation S Global
Note.


 


(b)           Transfers
Pursuant to Regulation S. The following provisions shall apply with
respect to registration of any proposed transfer of a Transfer Restricted Note
pursuant to Regulation S:


 


(i)            The
Registrar shall register any proposed transfer of a Transfer Restricted Note
pursuant to Regulation S by a Holder upon receipt of (a) an appropriately
completed certificate of transfer in the form attached to the Note and
(b) a letter substantially in the form set forth in Exhibit D
hereto from the proposed transferor.


 


(ii)           If
the proposed transferee is an Agent Member holding a beneficial interest in a
QIB Global Note and the Transfer Restricted Note to be transferred consists of
an interest in a QIB Global Note, upon receipt by the Registrar of (x) the
letter, if any, required by paragraph (i) above and (y) instructions
in accordance with the Depositary’s and the Registrar’s procedures therefor,
the Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Regulation S Global Note in an amount equal
to the


 


51





















 


principal
amount of the beneficial interest in the QIB Global Note to be transferred, and
the Registrar shall reflect on its books and records the date and an
appropriate decrease in the principal amount of the QIB Global Note.


 


(c)           Restricted
Notes Legend. Upon the transfer, exchange or replacement of Notes not
bearing the Restricted Notes Legend, the Registrar shall deliver Notes that do
not bear the Restricted Notes Legend. Upon the transfer, exchange or
replacement of Notes bearing the Restricted Notes Legend, the Registrar shall
deliver only Notes that bear the Restricted Notes Legend unless there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.


 


(d)           General.
By its acceptance of any Note bearing the Restricted Notes Legend, each Holder
of such a Note acknowledges the restrictions on transfer of such Note set forth
in this Indenture and in the Restricted Notes Legend and agrees that it shall
transfer such Note only as provided in this Indenture. A transfer of a
beneficial interest in a Global Note that does not involve an exchange of such
interest for a Certificated Note or a beneficial interest in another Global
Note shall be subject to compliance with applicable law and the applicable
procedures of the Depositary, but is not subject any procedure required by this
Indenture.


 


The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to this Section 2.16.


 


SECTION 2.17       Issuance of Additional
Notes.


 


The Company shall be entitled to issue
Additional Notes, including Exchange Notes, under this Indenture that shall
have identical terms as the Initial Notes, other than with respect to the date
of issuance, issue price and amount of interest payable on the first interest
payment date applicable thereto (and, if such Additional Notes shall be issued
in the form of Transfer Restricted Notes, other than with respect to transfer
restrictions, any registration rights agreement and additional interest with
respect thereto);  provided that such
issuance is not prohibited by the terms of this Indenture, including Section 4.9
and Section 4.12.


 


The Initial Notes and any Additional Notes
subsequently issued under this Indenture will be treated as a single class for
all purposes under this Indenture, including waivers, amendments, redemptions
and offers to purchase.


 


With respect to any Additional Notes, the
Company shall set forth in a Board Resolution and in an Officers’ Certificate,
a copy of each of which shall be delivered to the Trustee, the following
information:


 


(1)           the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;


 


(2)           the
issue price, the issue date, the CUSIP number of such Additional Notes, the
first interest payment date and the amount of interest payable on such first


 


52

















 


interest payment date applicable thereto and the date from which
interest shall accrue; and


 


(3)           whether
such Additional Notes shall be Transfer Restricted Notes.


 


ARTICLE III


 


REDEMPTION AND
PREPAYMENT


 


SECTION 3.1         Notices to Trustee.


 


If the Company elects to redeem Notes
pursuant to the optional redemption provisions of Section 3.7
hereof, it shall furnish to the Trustee, at least 30 days or such shorter
period as is acceptable to the Trustee before a redemption date, an Officers’
Certificate setting forth (i) the Section of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the Redemption Price.


 


If the Company is required to make an offer
to purchase Notes pursuant to Section 4.10 or 4.14 hereof,
it shall furnish to the Trustee, at least 30 days or such shorter period
as is acceptable to the Trustee before the scheduled purchase date, an Officers’
Certificate setting forth (i) the Section of this Indenture pursuant to
which the offer to purchase shall occur, (ii) the terms of the offer,
(iii) the principal amount of Notes to be purchased, (iv) the
purchase price and (v) the purchase date and further setting forth a
statement to the effect that (a) the Company or one of its Subsidiaries
has effected an Asset Sale and there are Excess Proceeds aggregating more than
$25.0 million or (b) a Change of Control has occurred, as applicable.


 


The Company will also provide the Trustee
with any additional information that the Trustee reasonably requests in
connection with any redemption or offer.


 


SECTION 3.2         Selection of Notes To
Be Redeemed.


 


If less than all of the Notes are to be
redeemed at any time, the Registrar will select Notes for redemption as
follows:


 


(1)           if the Notes are listed
on any national securities exchange, in compliance with the requirements of the
principal national securities exchange on which such Notes are listed; or


 


(2)           if the Notes are not
listed on any national securities exchange, on a pro
rata basis to the extent practicable or in accordance with customary
procedures of DTC.


 


No Notes of $2,000 or less shall be redeemed
in part. Except as otherwise provided herein, notices of redemption shall be
mailed by first class mail at least 30 but not more than 60 days before the
redemption date to each Holder of Notes to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with Sections 8.2,
8.3 or 8.8 hereof.


 


53

















 


If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note will state the portion of
the principal amount thereof that is to be redeemed. A new Note in principal
amount equal to the unredeemed portion of the original Note will be issued in
the name of the Holder thereof upon cancellation of the original Note (or
appropriate adjustments to the amount and beneficial interests in a Global Note
will be made, as appropriate). Notes called for redemption become due on the
date fixed for redemption.


 


On and after the redemption date, interest
shall cease to accrue on Notes or portions of them called for redemption so
long as the Company has deposited with the paying agent for the Notes funds in
satisfaction of the redemption price (including accrued and unpaid interest on
the Notes to be redeemed) pursuant to this Indenture. The Registrar shall make
the selection from the Notes outstanding and not previously called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable Redemption Price pursuant to this Indenture and
shall promptly notify the Company in writing of the Notes selected for
redemption. The Registrar may select for redemption portions (equal to $2,000
or any integral multiples of $1,000 thereof) of the principal of the Notes that
have denominations larger than $2,000.


 


SECTION 3.3         Notice of Redemption.


 


Subject to the provisions of Section 3.9,
at least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed by first class mail, a notice of redemption
to the Trustee, the Registrar and each Holder whose Notes are to be redeemed.


 


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


 


(1)           the
redemption date;


 


(2)           the
Redemption Price;


 


(3)           if
any Note is being redeemed in part, the portion of the principal amount of such
Notes 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 upon cancellation of the original Note;


 


(4)           the
name, telephone number and address of the Paying Agent;


 


(5)           that
Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;


 


(6)           that,
on the redemption date, the redemption price will become due and payable upon
each such Note or portion thereof, and that, unless the Company defaults in making
such redemption payment, interest, if any, on Notes called for redemption
ceases to accrue on and after the redemption date;


 


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


 


54

















 


(8)           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 Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at the Company’s expense;  provided, however, that the Company shall
have delivered to the Trustee, at least 45 days prior to the redemption
date (or such shorter period as is acceptable to the Trustee), an Officers’
Certificate requesting that the Trustee give such notice and providing a form
of notice setting forth the information to be stated in the notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the
Holder receives such notice. In any case, failure to give such notice by mail
or any defect in the notice to the Holder of any Note shall not affect the
validity of the proceeding for the redemption of any other Note.


 


SECTION 3.4         Effect of Notice of
Redemption.


 


Once notice of redemption is mailed in
accordance with Section 3.3 hereof, Notes called for redemption
become irrevocably due and payable on the redemption date at the Redemption
Price plus accrued and unpaid interest and Additional Interest, if any, to such
date. Any notice of redemption that is not mailed at least 30 days prior to the
redemption date shall result in such redemption date becoming effective 30 days
following the date the notice is mailed. A notice of redemption may not be
conditional.


 


SECTION 3.5         Deposit of Redemption
of Purchase Price.


 


On or before 10:00 a.m. (New York City
time) on each redemption date or the date on which Notes must be accepted for
purchase pursuant to Section 4.10 or 4.14, the Company shall
deposit with the Paying Agent (other than the Company or an Affiliate of the Company)
money sufficient to pay the Redemption Price of and accrued and unpaid interest
and Additional Interest, if any, on all Notes to be redeemed or purchased on
that date. The Trustee or the Paying Agent shall promptly return to the Company
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the Redemption Price of (including any
applicable premium), and accrued interest and Additional Interest, if any, on,
all Notes to be redeemed or purchased.


 


If Notes called for redemption or tendered in
an Asset Sale Offer or Change of Control Offer are paid or if the Company has
deposited with the Paying Agent money sufficient to pay the redemption or purchase
price of, and unpaid and accrued interest, if any, on, all Notes to be redeemed
or purchased, on and after the redemption or purchase date, interest, if any,
shall cease to accrue on the Notes or the portions of Notes called for
redemption or tendered and not withdrawn in an Asset Sale Offer or Change of
Control Offer (regardless of whether certificates for such securities are
actually surrendered). If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest and Additional Interest, if any, 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 Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal from
the redemption or purchase date until such principal is paid, and to the extent
lawful on any


 


55

















 


interest not
paid on such unpaid principal, in each case, at the rate provided in the Notes
and in Section 4.1 hereof. If any Note called for redemption or
tendered in an Asset Sale Offer or Change of Control Offer shall not be so paid
upon surrender for redemption because of the failure of the Company to comply
with the preceding paragraph, interest and Additional Interest, if any, 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.


 


Any and all interest payable upon any
redemption shall be payable in cash.


 


SECTION 3.6         Notes Redeemed in Part.


 


Upon surrender and cancellation of a Note that
is redeemed in part, the Company shall issue and, upon the written request of
an Officer of the Company, the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered and cancelled; provided that each such
new Note will be in a principal amount of $2,000 or integral multiples of
$1,000 in excess thereof.


 


SECTION 3.7         Optional Redemption.


 


(a)           The Notes may be redeemed, in whole or in
part, at any time prior to November 15, 2011, at the option of the Company upon
not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to each Holder’s registered address, at a Redemption Price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest and Additional Interest, if any, to, the applicable
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date).


 


(b)           The Notes are subject to redemption, at the
option of the Company, in whole or in part, at any time on or after November
15, 2011, upon not less than 30 nor more than 60 days’ notice, at the following
Redemption Prices (expressed as a percentage of the principal amount to be
redeemed) set forth below, plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the redemption date (subject to the
right of Holders of record on the relevant regular record date to receive
interest due on an interest payment date that is on or prior to the redemption
date) if redeemed during the twelve-month period beginning on November 15 of
the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  105.250

  	
  %

  
	
  2012

  	
   

  	
  102.625

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.00

  	
  %

  



 


(c)           In addition to the optional redemption of
the Notes in accordance with the provisions of the preceding paragraph, prior
to November 15, 2010, the Company may on one or more occasions, with the net
cash proceeds of one or more Equity Offerings, redeem up to 35% of the
aggregate principal amount of the outstanding Notes at a Redemption Price of
110.5% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the date of redemption (provided that if the Equity Offering is an offering by
Parent or


 


56





















 


any of its direct or indirect parent
companies, a portion of the net cash proceeds thereof equal to the amount
required to redeem any such Notes is contributed to the equity capital of the
Company); provided that at least 65% of the aggregate principal amount
of Notes originally issued on the Issue Date remains outstanding immediately
after the occurrence of any such redemption (excluding Notes held by Parent and
its Affiliates) and that any such redemption occurs within 90 days
following the closing of any such Equity Offering.


 


SECTION 3.8         Mandatory Redemption.


 


Except as set forth under Section 3.9,
4.10 and 4.14 hereof, the Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


SECTION 3.9         Offer to Purchase.


 


In the event that the Company shall be
required to commence an Offer to Purchase pursuant to an Asset Sale Offer or a
Change of Control Offer, the Company shall follow the procedures specified
below.


 


On the Purchase Date, the Company shall
purchase the aggregate principal amount of Notes required to be purchased
pursuant to Section 4.10 hereof or Section 4.14 hereof
(the “Offer Amount”), or if less than the Offer Amount has been
tendered, all Notes tendered in response to the Offer to Purchase. If the
Purchase Date is on or after the interest record date and on or before the
related interest payment date, any accrued and unpaid interest and Additional
Interest, if any, 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, if any, shall be payable to the Holders who tender Notes pursuant to
the Offer to Purchase. The Company shall notify the Trustee at least
15 days (or such shorter period as is acceptable to the Trustee) prior to
the mailing of the Offer of the Company’s obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company. The
Offer shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Offer to Purchase.


 


On or before 10:00 a.m. (New York City
time) on each Purchase Date, the Company shall irrevocably deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) in
immediately available funds the aggregate purchase price equal to the Offer
Amount, or if less than the Offer Amount has been properly tendered, the
aggregate purchase price equal to all Notes or portion of Notes properly
tendered, together with accrued and unpaid interest, if any, thereon, to be
held for payment in accordance with the terms of this Section 3.9. On
the Purchase Date, the Company shall, to the extent lawful, (i) accept for
payment, on a pro  rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Offer to Purchase,
or if less than the Offer Amount has been tendered, all Notes tendered,
(ii) deliver or cause the Paying Agent or Depositary, as the case may be,
to deliver to the Trustee Notes so accepted and (iii) deliver to the
Trustee an Officers’ Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this Section 3.9.
The Company, the Depositary or the Paying Agent, as the case may be, shall
promptly mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for
purchase, plus any


 


57

















 


accrued and
unpaid interest and Additional Interest, if any, thereon, and the Company shall
promptly issue a new Note, and the Trustee, at the written request of the
Company, shall authenticate and mail or deliver (or cause to be transferred by
book entry) at the expense of the Company such new Note to such Holder, equal
in principal amount to any unpurchased portion of such Holder’s Notes
surrendered, if any; provided that each new Note will be in a minimum
principal amount of $2,000 or integral multiples of $1,000 in excess thereof. Any
Note not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce in a newspaper of
general circulation or in a press release provided to a nationally recognized
financial wire service the results of the Offer to Purchase on the Purchase
Date.


 


Other than as specifically provided in this Section 3.9,
any purchase pursuant to this Section 3.9 shall be made pursuant to
the provisions of Sections 3.1 through 3.6 hereof.


 


ARTICLE IV


 


COVENANTS


 


SECTION 4.1         Payment of Notes.


 


(a)           The Company shall pay or cause to be paid
the principal of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Additional Interest, if any, shall be considered paid for all purposes hereunder
on the date the Paying Agent, if other than the Company or a Subsidiary
thereof, holds, as of 10:00 a.m. (New York City time), money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all such principal, premium, if any, and interest and Additional Interest,
if any, then due. The Company shall pay all Additional Interest, if any, in the
same manner on the dates and amounts set forth in the Registration Rights
Agreement; provided, however, the Company shall deliver an
Officers’ Certificate to the Trustee stating that Additional Interest is due
and stating the amount of such Additional Interest on $1,000 aggregate
principal amount of Notes to the Trustee no later than the Record Date of such
payment. Unless and until the Trustee receives an Officers’ Certificate stating
that Additional Interest is due and payable, the Trustee is entitle to assume
no Additional Interest is due.


 


(b)           The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% per  annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest, if
any (without regard to any applicable grace period), at the same rate to the
extent lawful.


 


SECTION 4.2         Maintenance of Office
or Agency.


 


The Company shall maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee or an Affiliate of the Trustee or Registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be


 


58

















 


served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.


 


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


 


The Company hereby designates the Corporate
Trust Office of the Trustee as one such office or agency of the Company in
accordance with Section 2.3 hereof.


 


SECTION 4.3         Reports.


 


Whether or not required by the Commission, so
long as any Notes are outstanding, if not filed electronically with the
Commission through the Commission’s Electronic Data Gathering, Analysis, and
Retrieval System (or any successor system), the Company will furnish to the Holders,
within fifteen days after the deadlines specified in the Commission’s rules and
regulations for a filer that is a “non-accelerated filer”:


 


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


 


(2)           substantially the same
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports (other than those current
reports relating to Section 3 (Securities and Trading Markets), Section 5
(Corporate Governance and Management), Section 6 (Asset-Backed Securities) and
Section 8 (Other Events) or successor provisions, provided,  however,
that the Company shall be required to file current reports relating to change
of control of the Company, any amendments to the charter documents of the
Company or any Guarantor or any
material modification to rights of security holders).


 


In addition, whether or not required by the
Commission, the Company will file a copy of all of the information and reports
referred to in clauses (1) and (2) above with the Commission for public
availability within the time periods specified in the Commission’s rules and
regulations (unless the Commission will not accept such a filing) for a filer
that is not an “accelerated filer” (as defined in such rules and regulations)
and make such information available to securities analysts and prospective
investors upon request. To the extent any such information is not so filed or
furnished, as


 


59

















 


applicable,
within the time periods specified above and such information is subsequently
filed or furnished, as applicable, the Company will be deemed to have satisfied
its obligations with respect thereto at such time and any Default or Event of
Default with respect thereto shall be deemed to have been cured; provided,  that such cure shall not otherwise affect the rights of the
Holders pursuant to Article VI if holders of at least 25% in principal
amount of the then total outstanding Notes have declared the principal,
premium, if any, interest and any other monetary obligations on all the then
outstanding Notes to be due and payable immediately and such declaration shall
not have been rescinded or cancelled prior to such cure. In addition, the
Company has agreed that, for so long as any Notes remain outstanding, it will
furnish to the Holders of the Notes and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d) (4) under the Securities Act.


 


In addition, if at any time Parent or any
direct or indirect parent company that becomes a Guarantor (there being no
obligation of any such parent company to do so), holds no material assets other
than cash, Cash Equivalents and the Capital Stock of the Company or any other
direct or indirect parent of the Company (and performs the related incidental
activities associated with such ownership)  and complies with the
requirements of Rule 3-10 of Regulation S-X promulgated by the Commission (or
any successor provision), the reports, information and other documents required
to be filed and furnished to Holders of the Notes pursuant to this Section
4.3 may, at the option of the Company, be filed by and be those of Parent
or such parent company (as applicable) rather than the Company; provided  that the same is accompanied by consolidating information
as required by Rule 3-10 of Regulation S-X that explains in reasonable detail
the differences between the information relating to Parent and such other
parent, on the one hand, and the information relating to the Company and its
Restricted Subsidiaries on a standalone basis, on the other hand.


 


If the Company is required to furnish reports
to the Holders pursuant to the first paragraph of this Section 4.3, the
Company shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information and, if requested by the Company,
at its expense, the Trustee will deliver such reports to the Holders under this
Section 4.3. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from the information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates). The Trustee is under
no duty to examine such reports, information or documents to ensure compliance
with the provisions of this Indenture or to ascertain the correctness or
otherwise of the information of the statements contained therein. The Trustee
is entitled to assume such compliance and correctness unless a Responsible
Officer of the Trustee is informed otherwise.


 


SECTION 4.4         Compliance Certificate.


 


The Company shall deliver to the Trustee,
within 90 days after the end of each fiscal year beginning with the fiscal
year ending December 31, 2007, an Officers’ Certificate stating that a review
of the activities of the Company and its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether each has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that, to the best of his or her knowledge, no
Default or Event of Default has occurred during the previous fiscal year (or,
if a Default or


 


60

















 


Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that, to the best of his or her
knowledge, no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest or
Additional Interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.


 


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


 


Except with respect to receipt of Note
payments when due and any Default or Event of Default information contained in
the Officer’s Certificate delivered to it pursuant to this Section 4.4 the
Trustee shall have no duty to review, ascertain or confirm the Company’s
compliance with, or the breach of any representation, warranty of covenant made
in this Indenture.


 


SECTION 4.5         Taxes.


 


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


 


SECTION 4.6         Stay, Extension and
Usury Laws.


 


The Company and each of the Guarantors
covenant (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
of this Indenture; and the Company and each of the Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


SECTION 4.7         Limitation on
Restricted Payments.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly:


 


(a)           declare
or pay any dividend or make any other distribution on account of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests, including any dividend
or distribution payable in connection with any merger or consolidation (other
than (i) dividends or distributions by the Company payable in Equity Interests
(other than


 


61

















 


Disqualified Stock) of the Company or in options, warrants or other
rights to purchase such Equity Interests (other than Disqualified Stock) and
(ii) dividends or distributions by a Restricted Subsidiary payable on or in
respect of any class or series of its securities, provided that such
dividend or distribution is made in accordance with the terms of the agreement
or instrument governing such class or series of securities);


 


(b)           purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
Company or any direct or indirect parent entity of the Company held by any
Person (other than by a Restricted Subsidiary), including in connection with
any merger or consolidation;


 


(c)           make
any principal payment on, or redeem, repurchase, defease or otherwise acquire
or retire for value, in each case prior to any scheduled repayment, sinking
fund payment or maturity, any Subordinated Indebtedness (other than (x)
Indebtedness permitted under clause (8) of the second paragraph of Section
4.9 or (y) the purchase, repurchase or other acquisition or retirement of
Subordinated Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due
within one year of the date of purchase, repurchase, acquisition or
retirement); or


 


(d)           make
any Restricted Investment;


 


(all such
payments and other actions set forth in these clauses (a) through (d) being
collectively referred to as “Restricted Payments”), unless, at the time
of and after giving effect to such Restricted Payment:


 


(1)           no Default or Event of
Default has occurred and is continuing or would occur as a consequence of such
Restricted Payment;


 


(2)           the Company would, at
the time of such Restricted Payment and after giving pro forma effect thereto
as if such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Total Leverage Ratio test set forth in the first
paragraph of Section 4.9; and


 


(3)           such Restricted
Payment, together with (A) the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Issue
Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5),
(6), (7), (9), (11), (13), (14), (15) and (16) of the next succeeding
paragraph; provided that the calculation of Restricted Payments shall
also exclude the amounts paid or distributed pursuant to clause (1) of the
next paragraph to the extent that the declaration of such dividend or other
distribution shall have previously been included as a Restricted Payment), and
(B) the aggregate amount of all prepayments of Existing Notes pursuant to
clause (B) of the proviso in clause (2) of Section 4.18 made by the
Company and its Restricted Subsidiaries after the Issue Date, is less than the
sum, without duplication, of


 


(a)           50%
of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal


 


62

















 


quarter commencing after the Issue Date to the end of
the Company’s most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, in the
case such Consolidated Net Income for such period is a deficit, minus 100% of
such deficit), plus


 


(b)           100%
of the aggregate net cash proceeds and the fair market value, as determined in
good faith by the Board of Directors of the Company, of property received by
the Company after the Issue Date from the issue or sale (other than to a
Subsidiary of the Company or to an employee stock ownership plan or trust
established by the Company or any of its Subsidiaries) of (x) Equity Interests
of the Company (excluding (i) cash proceeds applied to Restricted Payments made
in accordance with clause (4) of the next succeeding paragraph, (ii) cash
proceeds received from the sale of Refunding Capital Stock to the extent such
amounts have been applied to Restricted Payments made in accordance with clause
(2) of the next succeeding paragraph, (iii) Designated Preferred Stock and
(iv) Disqualified Stock) or (y) debt securities or Disqualified Stock of the
Company that has been converted into or exchanged for Equity Interests of the
Company (other than (i) Refunding Capital Stock, (ii) Equity Interests or
convertible debt securities of Parent or any other direct or indirect parent
company sold to a Subsidiary or Parent, (iii) Disqualified Stock or
(iv) Designated Preferred Stock), plus


 


(c)           100%
of the aggregate amount of cash and the fair market value, as determined in
good faith by the Board of Directors of the Company, of property contributed to
the equity capital of the Company after the Issue Date (other than (i) by a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or any of its Subsidiaries, (ii) any Excluded Contributions,
(iii) any Disqualified Stock, (iv) any Refunding Capital Stock, (v) any
Designated Preferred Stock and (vi) cash proceeds applied to Restricted
Payments made in accordance with clause (4) of the next succeeding paragraph), plus


 


(d)           to the extent not
already included in Consolidated Net Income, 100% of the aggregate amount
received by the Company or a Restricted Subsidiary after the Issue Date in cash
and the fair market value, as determined in good faith by the Board of
Directors of the Company, of property received by the Company or a Restricted
Subsidiary after the Issue Date by means of (A) the sale or other disposition
(other than to the Company or a Restricted Subsidiary) of Restricted
Investments made by the Company or its Restricted Subsidiaries and repurchases
and redemptions of such Restricted Investments from the Company or its
Restricted Subsidiaries and repayments of loans or advances which constitute
Restricted Investments of the Company or its Restricted Subsidiaries or (B) the
sale (other than to the Company or a Restricted Subsidiary) of the Capital
Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary
(other than, in each case, to the extent the Investment in such Unrestricted Subsidiary
constituted a Permitted Investment) or a dividend or other distribution from an
Unrestricted Subsidiary, plus


 


63

















 


(e)           in the case of the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the
merger or consolidation of an Unrestricted Subsidiary into the Company or a
Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary
to the Company or a Restricted Subsidiary, the fair market value of the
Investment in such Unrestricted Subsidiary or of the assets transferred (as
applicable), as determined by the Board of Directors of the Company in good
faith at the time of the redesignation of such Unrestricted Subsidiary as a
Restricted Subsidiary or at the time of such merger, consolidation or transfer
of assets (other than an Unrestricted Subsidiary to the extent the Investment
in such Unrestricted Subsidiary constituted a Permitted Investment), plus


 


(f)            $125.0
million.


 


The preceding provisions will not prohibit:


 


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


 


(2)           (A) the redemption,
repurchase, retirement or other acquisition of any Equity Interests of the
Company or any direct or indirect parent of the Company (“Retired Capital
Stock”) or Subordinated Indebtedness in exchange for or out of the net cash
proceeds of the substantially concurrent sale (other than to the Company or any
of its Subsidiaries) of Equity Interests of the Company or contributions to the
equity capital of the Company (in each case, other than Disqualified Stock) (“Refunding
Capital Stock”) and (B) the declaration and payment of dividends on Retired
Capital Stock out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company or to an employee stock ownership
plan or any trust established by the Company or any of its Subsidiaries) of
Refunding Capital Stock;


 


(3)           the redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness made
in exchange for, or out of the proceeds of the substantially concurrent sale
of, new Indebtedness of the borrower of such Subordinated Indebtedness which is
incurred in compliance with Section 4.9 so long as (A) such new
Indebtedness is subordinated to the Notes and any Guarantees thereof at least
to the same extent as such Subordinated Indebtedness so redeemed, repurchased,
acquired or retired, (B) such new Indebtedness has a final scheduled maturity
date equal to or later than the final scheduled maturity date of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or retired
and (C) such new Indebtedness has a Weighted Average Life to Maturity equal to
or greater than the remaining Weighted Average Life to Maturity of the
Subordinated Indebtedness being so redeemed, repurchased, acquired or retired;


 


(4)           a Restricted Payment to
pay for the repurchase, retirement, redemption or other acquisition or
retirement for value of Equity Interests of the Company or any of its direct or
indirect parent companies held by any future, present or former employee,


 


64

















 


director or
consultant of the Company, any Subsidiary or any of its direct or indirect
parent companies (or their permitted transferees, assigns, estates or heirs)
pursuant to any management unit purchase agreement, management equity plan or
stock option plan or any other management or employee benefit plan, agreement
or arrangement (including, for the avoidance of doubt, any principal and
interest payable on any notes issued by the Company or any direct or indirect
parent company in connection with any such repurchase, retirement or other
acquisition or retirement), provided, however, that the aggregate
amount of Restricted Payments made under this clause (4) does not exceed $25.0
million in any calendar year, with any unused amounts in any calendar year
being carried over to the two immediately succeeding calendar years subject to
a maximum of $50.0 million in any calendar year; provided, further,
that such amount in any calendar year may be increased by an amount not to
exceed (A) the net cash proceeds from the sale of Equity Interests (other than
Disqualified Stock) of the Company and, to the extent contributed to the
Company, Equity Interests of any of its direct or indirect parent companies, in
each case to members of management, directors or consultants of the Company,
any of its Subsidiaries or any of its direct or indirect parent companies that
occurs after the Issue Date plus (B) the cash proceeds of “key man” life
insurance policies received by the Company or its Restricted Subsidiaries after
the Issue Date (provided that the Company may elect to apply all or any
portion of the aggregate increase contemplated by clauses (A) and (B) above in
any calendar year) (it being understood that the forgiveness of any debt by
such Person shall not be a Restricted Payment hereunder) (to the extent such
debt was incurred to purchase Equity Interests of the Company or any of its
direct or indirect parent companies)) minus (C) the amount of any
Restricted Payments previously made pursuant to clauses (A) and (B) of this
clause (4);


 


(5)           the declaration and
payment of dividends to holders of any class or series of Disqualified Stock of
the Company or any Restricted Subsidiary issued or incurred in accordance with Section
4.9; provided such Disqualified Stock is included in the calculation
of Consolidated Total Indebtedness for such entity;


 


(6)           the declaration and
payment of dividends or distributions to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) and the declaration
and payment of dividends to any direct or indirect parent company of the
Company the proceeds of which will be used to fund the payment of dividends to
holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) of any direct or indirect parent company of the Company
issued after the Issue Date; provided, however, that (A) for the
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such
Designated Preferred Stock, after giving effect to such issuance (and the
payment of dividends or distributions thereon) on a pro forma basis, the
Company would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Total Leverage Ratio test set forth in the first paragraph of Section
4.9 or as “Permitted Debt” and (B) the aggregate amount of dividends
declared and paid pursuant to this clause (6) does not exceed the net cash
proceeds actually received by the Company from any such sale of Designated Preferred
Stock (other than Disqualified Stock) issued after the Issue Date;


 


65

















 


(7)           repurchases of Equity
Interests deemed to occur upon exercise of stock options or warrants if such
Equity Interests represent a portion of the exercise price of such options or
warrants;


 


(8)           the payment of
dividends on the Company’s common stock (or the payment of dividends to any
direct or indirect parent company of the Company, as the case may be, to fund
the payment by any such parent company of the Company of dividends on such
entity’s common stock) following the first public offering of the Company’s
common stock or the common stock of any of its direct or indirect parent
companies after the Issue Date, in an aggregate amount not to exceed, in any
year, 6% of the net cash proceeds received by or contributed to the Company
after the Issue Date in any such public offering, other than public offerings
of common stock of the Company (or any direct or indirect parent company of the
Company) registered on Form S-4 or Form S-8 and other than any public sale
constituting an Excluded Contribution;


 


(9)           Investments that are
made with Excluded Contributions;


 


(10)         the payment of dividends
or other distributions to any direct or indirect parent company of the Company
to fund the payment by any such parent company of interest payments or AHYDO
Catch Up Payments on Indebtedness, or dividends on Preferred Stock, of such
parent company incurred or issued after the Issue Date; provided,  however,
that (A) the net cash proceeds of such Indebtedness or such Preferred Stock, as
the case may be, are contributed to the Company as common equity, (B) the
aggregate amount of dividends declared and paid pursuant to this clause (10)
does not exceed the amount of net cash proceeds of such Indebtedness or
Preferred Stock actually contributed to the Company as common equity and (C) after
giving effect to such dividends or other distributions, the amount available
for Restricted Payments pursuant to clause (3) of the first paragraph of this Section
4.7 shall not be less than $0;


 


(11)         distributions or payments
of Receivables Fees and purchase of any assets in connection with a Receivables
Facility;


 


(12)         the repurchase,
redemption or other acquisition or retirement for value of any Subordinated
Indebtedness or Disqualified Stock pursuant to provisions similar to those
described in Sections 4.10 and 4.14; provided that a
Change of Control Offer or Asset Sale Offer, as applicable, has been made and
all Notes tendered by Holders of the Notes in connection with a Change of
Control Offer or Asset Sale Offer, as applicable, have been repurchased,
redeemed or acquired for value;


 


(13)         the declaration and
payment of dividends to, or the making of loans to, a direct or indirect parent
company of the Company in amounts required for such Person to pay, without
duplication:


 


(i)            franchise
taxes and other fees, taxes and expenses required to maintain its corporate
existence;


 


(ii)           federal,
foreign, state and local income or franchise taxes (or any alternative tax in
lieu thereof); provided, that, in each fiscal year, the amount of


 


66





















 


such payments
shall be equal to the amount that the Company and its Restricted Subsidiaries
would be required to pay in respect of federal, foreign, state and local income
or franchise taxes if such entities were corporations paying taxes separately
from any parent entity at the highest combined applicable federal, foreign,
state, local or franchise tax rate for such fiscal year;


 


(iii)          customary
salary, bonus, severance, indemnification obligations and other benefits payable
to officers and employees of any direct or indirect parent company of the
Company and any payroll, social security or similar taxes thereof to the extent
such salaries, bonuses, severance, indemnification obligations and other
benefits are reasonably attributable to the ownership or operation of the
Company and its Restricted Subsidiaries;


 


(iv)          general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Company to the extent such costs and expenses are reasonably
attributable to the ownership or operation of the Company and its Restricted
Subsidiaries;


 


(v)           amounts
payable pursuant to the Management Agreement;


 


(vi)          fees
and expenses other than to Affiliates of the Company related to (1) any
unconsummated equity or debt offering of such parent entity, (2) any Investment
otherwise permitted under this section (whether or not successful) and (3) any
transaction of the type described under Section 5.1;


 


(vii)         cash
payments in lieu of issuing fractional shares in connection with the exercise
of warrants, options or other securities convertible into or ex-changeable for
Equity Interests of the Company or any direct or indirect parent;


 


(viii)        amounts
to finance Investments otherwise permitted to be made pursuant to this
Indenture; provided, that (1) such Restricted Payment shall be made
substantially concurrently with the closing of such Investment and (2) such
direct or indirect parent company shall, immediately following the closing
thereof, cause (x) all property acquired (whether assets or Equity Interests)
to be contributed to the capital of the Company or one of its Restricted
Subsidiaries or (y) the merger of the Person formed or acquired into the
Company or one of its Restricted Subsidiaries (to the extent not prohibited Section
5.1 in order to consummate such Investment; (3) such direct or indirect
parent company and its Affiliates (other than the Company or a Restricted
Subsidiary) receives no consideration or other payment in connection with such
transaction, (4) any property received by the Company shall not increase
amounts available for Restricted Payments pursuant to clause (3) of the first
paragraph of this Section 4.7 and (5) such Investment shall be deemed to
be made by the Company or such Restricted Subsidiary by another paragraph of
this paragraph (other than pursuant to clause (9) hereof) or pursuant to the
definition of “Permitted Investments” (other than clause (11) thereof);


 


67
















 


(ix)           reasonable and
customary fees payable to any directors of any direct or indirect parent of the
Company and reimbursement of reasonable out-of-pocket costs of the directors of
any direct or indirect parent of the Company in the ordinary course of business,
to the extent reasonably attributable to the ownership or operation of the
Company and its Restricted Subsidiaries; and


 


(x)            reasonable
and customary indemnities to directors, officers and employee of any direct or
indirect parent of the Company in the ordinary course of business, to the
extent reasonably attributable to the ownership or operation of the Company and
its Restricted Subsidiaries;


 


(14)         cash payments in lieu of
the issuance of fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for Equity
Interests of the Company; provided, however, that any such cash
payment shall not be for the purpose of evading the limitation of this Section
4.7 (as determined in good faith by the Board of Directors of the Company);


 


(15)         distributions, by
dividends or otherwise, of Capital Stock of, or Indebtedness owed to the
Company or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than
any Unrestricted Subsidiary in which the Company or any Restricted Subsidiary
has made an Investment (including by designation of a Restricted Subsidiary
thereof as an Unrestricted Subsidiary) pursuant to clause (17) below or clause
(10) of the definition of “Permitted Investments”);


 


(16)         any Restricted Payment
used to fund the Transactions and the fees and expenses related thereto
(including any repurchase of the Existing Notes on the Issue Date or
thereafter);


 


(17)         Investments in
Unrestricted Subsidiaries having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (17) that are at the
time outstanding, without giving effect to any sale of an Unrestricted
Subsidiary to the extent the proceeds of such sale do not consist of cash or
marketable securities or are included in the calculation under clause (3)(d) of
the first paragraph of this Section 4.7, not to exceed 5.0% of Total Net
Tangible Assets at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to
subsequent changes in value); and


 


(18)         payments and
distributions to dissenting stockholders pursuant to applicable law, pursuant
to or in connection with a consolidation, merger or transfer of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole that complies with the terms of this Indenture, including Article
V hereof;


 


provided,  however,  that at the
time of, and after giving effect to, (i) any Restricted Payment permitted under
clauses (4), (5), (6), (8), (12), (13)(v) and (vi) and (17) above, no Default
or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof and (ii) any Restricted Payment permitted under clause
(10) above, no Default or Event of 


 


68

















 


Default
specified in clauses (1), (2), (5) or (6) of Section 6.1 shall have
occurred and be continuing or would occur as a consequence thereof.


 


The amount of all Restricted Payments (other
than cash) will be the fair market value on the date of the Restricted Payment
of the asset(s) or securities proposed to be transferred or issued by the
Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be
valued by this Section 4.7 will be determined in good faith by the Board
of Directors of the Company.


 


As of the Issue Date, all of the Company’s
Subsidiaries will be Restricted Subsidiaries. The Company will not permit any
Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to
the second to last sentence of the definition of “Unrestricted Subsidiary.”  For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding investments by the
Company and the Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated will be deemed to be Restricted Payments in an amount
determined as set forth in the second paragraph of the definition of “Investments.”  Such designation will be permitted only if a
Restricted Payment in such amount would be permitted at such time under this Section
4.7 or the definition of “Permitted Investments” and if such Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted
Subsidiaries will not be subject to any of the restrictive covenants of this
Indenture.


 


For the avoidance of doubt, any dividend or
distribution otherwise permitted pursuant to this Section 4.7 may be in
the form of a loan.


 


SECTION 4.8         Limitation on
Dividends and Other Payment Restrictions Affecting Subsidiaries.


 


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


 


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


 


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


 


(3)           sell, lease or transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.


 


However, the preceding restrictions will not
apply to encumbrances or restrictions existing under or by reason of:


 


(1)           contractual
encumbrances or restrictions in effect (x) pursuant to a Credit Facility or
related documents as in effect on the Issue Date or (y) on the Issue Date, including,
without limitation, pursuant to Indebtedness in existence on the Issue Date;


 


69

















 


(2)           this Indenture, the
Notes and Guarantees (including any Exchange Notes with respect to the Notes
and related Guarantees);


 


(3)           purchase money
obligations or other obligations described in clause (5) of the second
paragraph of Section 4.9 that, in each case, impose restrictions of the
nature discussed in clause (3) above in the first paragraph of this Section
4.8 on the property so acquired;


 


(4)           applicable law or any
applicable rule, regulation or order;


 


(5)           any agreement or other
instrument of a Person acquired by the Company or any Restricted Subsidiary in
existence at the time of such acquisition (but not created in connection
therewith or in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired;


 


(6)           contracts for the sale
of assets, including without limitation, customary restrictions with respect to
a Subsidiary pursuant to an agreement that has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary;


 


(7)           Secured Indebtedness
otherwise permitted to be incurred pursuant to Sections 4.9 and 4.12
that limits the right of the debtor to dispose of the assets securing such Indebtedness;


 


(8)           restrictions on cash or
other deposits or net worth imposed by customers under contracts entered into
in the ordinary course of business;


 


(9)           other Indebtedness or
Preferred Stock of any Restricted Subsidiary (i) that is a Guarantor that is
incurred subsequent to the Issue Date pursuant to Section 4.9 or (ii)
that is incurred by a Foreign Subsidiary of the Company subsequent to the Issue
Date pursuant to Section 4.9;


 


(10)         customary provisions in
joint venture agreements and other similar agreements entered into in the
ordinary course of business;


 


(11)         customary provisions
contained in leases, subleases, licenses or asset sale agreements and other
agreements;


 


(12)         restrictions and
conditions by the terms of the documentation governing any Receivables Facility
that in the good faith determination of the Company are necessary or advisable
to effect such Receivables Facility;


 


(13)         negative pledges and
restrictions on Liens in favor of any holder of Indebtedness permitted under
this Indenture; and


 


(14)         any encumbrances or
restrictions of the type referred to in clauses (1), (2) and (3) of the first
paragraph of this Section 4.8 imposed by any amendments, 


 


70

















 


modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clause
(1), (2), (3) or (5) above; provided  that the
encumbrances or restrictions imposed by such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Board of Directors of the
Company, not materially less favorable to the Holders of the Notes than
encumbrances and restrictions contained in such predecessor agreements and do
not affect the Company’s and Guarantors’ ability, taken as a whole, to make
payments of interest and scheduled payments of principal in respect of the
Notes, in each case as and when due; provided  further, however,  that with
respect to agreements existing on the Issue Date, any refinancings or
amendments thereof contain such encumbrances or restrictions that are not
materially less favorable to the Holders of the Notes than the encumbrances or
restrictions contained in such agreements as in effect on the Issue Date.


 


SECTION 4.9         Limitation on
Incurrence of Indebtedness and Issuance of Preferred Stock.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively “incur”) any
Indebtedness (including Acquired Debt) and will not permit any of its
Restricted Subsidiaries to issue any shares of Preferred Stock; provided,
however, that the Company and any Restricted Subsidiary may incur
Indebtedness (including Acquired Debt) and any Restricted Subsidiary may issue
Preferred Stock if the Total Leverage Ratio of the Company and its Restricted
Subsidiaries (on a consolidated basis) for the Company’s most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Preferred Stock is issued would have been less than 7.0 to 1.0
determined on a pro forma basis; provided  further, that any
incurrence of Indebtedness or issuance of Preferred Stock pursuant to this
paragraph by a Restricted Subsidiary that is not a Guarantor pursuant to this
paragraph is subject to the limitations of set forth in the last paragraph of
this Section 4.9.


 


The first paragraph of this Section 4.9
will not prohibit the incurrence of any of the following (collectively, “Permitted
Debt”):


 


(1)           the
incurrence by the Company or a Restricted Subsidiary of Indebtedness under
Credit Facilities together with the incurrence by the Company or any Restricted
Subsidiary of the guarantees thereunder and the issuance and creation of
letters of credit and bankers’ acceptances thereunder (with letters of credit
and bankers’ acceptances being deemed to have a principal amount equal to the
face amount thereof), up to an aggregate principal amount, equal to
(A) $2,565.0 million, plus
(B) the greater of (x) $500.0 million and (y) the maximum principal
amount of Indebtedness that could be incurred such that after giving effect
thereto the Secured Indebtedness Ratio of the Company would not exceed 5.0 to
1.0 (provided that only Indebtedness that is included in Secured
Indebtedness may be incurred under this clause (y)), minus (C) the
amount of all mandatory principal payments actually made by the borrower
thereunder with Net 


 


71

















 


Proceeds from Asset Sales minus (D) the aggregate amount of
Indebtedness incurred by a Receivables Subsidiary and then outstanding pursuant
to clause (18) of this paragraph;


 


(2)           the
incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes (including any Guarantee thereof) issued on the Issue Date and any
Exchange Notes and related exchange guarantees to be issued in exchange for the
Notes (including any Guarantee thereof) pursuant to the Registration Rights
Agreement;


 


(3)           the
incurrence by a Broker-Dealer Subsidiary of Indebtedness incurred in connection
with the settlement of securities transactions in the ordinary course of business
in an amount not to exceed $50.0 million at any one time outstanding;


 


(4)           any
Indebtedness of the Company and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness described in clause (1) or (2) above),
including the Existing Notes;


 


(5)           (i)
Indebtedness (including Capitalized Lease Obligations) incurred by the Company
or any Restricted Subsidiary to finance the purchase, construction, lease or
improvement of property (real or personal) or equipment that is used or useful
in a Permitted Business (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets), and (ii) Indebtedness incurred
to refinance any such Indebtedness under subclause (i), in an aggregate
principal amount under this clause (5) that, when aggregated with the principal
amount of all other Indebtedness then outstanding and incurred pursuant to this
clause (5) does not exceed $20.0 million;


 


(6)           Indebtedness
incurred by the Company or any Restricted Subsidiary constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business, including without limitation letters of credit in respect of workers’
compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other Indebtedness with
respect to reimbursement-type obligations regarding workers’ compensation
claims; provided, however, that upon the drawing of such letters
of credit or the incurrence of such Indebtedness, such obligations are
reimbursed or paid within 60 days following such drawing or incurrence;


 


(7)           indemnification,
adjustment of purchase price, earn-outs or similar obligations, in each case,
incurred or assumed in connection with the disposition or acquisition of any
business, assets or a Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
a Subsidiary for the purpose of financing such acquisition; provided, however,
that such Indebtedness is not reflected on the balance sheet (other than by
application of FIN 45 as a result of an amendment to an obligation in existence
on the Issue Date) of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not otherwise
reflected on the balance sheet will not be deemed to be reflected on such
balance sheet for purposes of this clause (7));


 


72

















 


(8)           Indebtedness
of the Company owed to and held by any Restricted Subsidiary or Indebtedness of
a Restricted Subsidiary owed to and held by the Company or any other Restricted
Subsidiary; provided, however, that (A) any subsequent issuance
or transfer of any Capital Stock or any other event that results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Company or a Restricted
Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien)
shall be deemed, in each case, to constitute the incurrence of such
Indebtedness not permitted by this clause (8) and (B) if the Company or a
Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated in right of payment to all obligations of the Company or such
Guarantor with respect to the Notes or the Guarantees;


 


(9)           shares
of Preferred Stock of a Restricted Subsidiary issued to the Company or a
Restricted Subsidiary; provided that any subsequent issuance or transfer
of any Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent
transfer of any such shares of Preferred Stock (except to the Company or a
Restricted Subsidiary) shall be deemed in each case to be an issuance of such
shares of Preferred Stock not permitted by this clause (9);


 


(10)         Hedging
Obligations of the Company or any Restricted Subsidiary (excluding Hedging
Obligations entered into for speculative purposes);


 


(11)         obligations
in respect of customs, stay, bid, appeal, performance and surety bonds, appeal
bonds and other similar types of bonds and performance and completion
guarantees and other obligations of a like nature provided by the Company or
any Restricted Subsidiary or obligations in respect of letters of credit
related thereto, in each case in the ordinary course of business consistent
with past practice;


 


(12)         Indebtedness
of the Company or any Restricted Subsidiary or Preferred Stock of any
Restricted Subsidiary not otherwise permitted hereunder in an aggregate
principal amount or liquidation preference which, when aggregated with the
principal amount and liquidation preference of all other Indebtedness and
Preferred Stock then outstanding and incurred pursuant to this clause (12) does
not at any one time outstanding exceed $150.0 million;


 


(13)         (x)
any guarantee by the Company or a Restricted Subsidiary of Indebtedness or
other obligations of any Restricted Subsidiary (other than Indebtedness
incurred pursuant to clause (3) above) so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms of this Indenture; provided that if such Indebtedness is by its
express terms subordinated in right of payment to the Notes or the Guarantee of
such Restricted Subsidiary or the Company, as applicable, any such guarantee of
such Guarantor with respect to such Indebtedness shall be subordinated in right
of payment to such Guarantor’s Guarantee with respect to the Notes
substantially to the same extent as such Indebtedness is subordinated to the
Notes or the Guarantee of such Restricted Subsidiary, as applicable, and (y)
any guarantee by a 


 


73

















 


Restricted Subsidiary of Indebtedness of the Company incurred in
accordance with the terms of this Indenture;


 


(14)         the
incurrence by the Company or any Restricted Subsidiary of Indebtedness or
Preferred Stock that serves to refund, replace or refinance any Indebtedness incurred
as permitted under the first paragraph of this covenant and clauses (2) and (4)
above, this clause (14) and clause (15) below or any Indebtedness issued to so
refund, replace, redeem, extend or refinance such Indebtedness including
additional Indebtedness incurred to pay premiums and fees in connection
therewith (the “Refinancing Indebtedness”) prior to its respective
maturity; provided, however, that (A) such Refinancing Indebtedness
has a Weighted Average Life to Maturity which is not less than the Weighted
Average Life to Maturity of the Indebtedness being refunded, replaced,
redeemed, extended or refinanced, and has a Stated Maturity not earlier than
the Stated Maturity of the Indebtedness being refunded, replaced, redeemed,
extended or refinanced, (B) to the extent such Refinancing Indebtedness
refinances Subordinated Indebtedness, such Refinancing Indebtedness is
subordinated to the Notes or the Guarantees at least to the same extent as the
Indebtedness being refunded, replaced or refinanced, (C) such Refinancing
Indebtedness shall not have any obligors that were not obligors of the
Indebtedness being refunded, replaced or refinanced, (D) such Refinancing
Indebtedness shall not be in a principal amount in excess of the principal
amount of, premium, if any, accrued interest on, and related fees and expenses
of, the Indebtedness being refunded, replaced, redeemed, extended or refinanced
and (E) any Preferred Stock shall be refunded, replaced or refinanced with
Preferred Stock;


 


(15)         subject
to the last paragraph of this covenant, (i) Indebtedness or Preferred Stock of
a Person incurred and outstanding on or prior to the date on which such Person
was acquired by, the Company or any Restricted Subsidiary or merged into the
Company or a Restricted Subsidiary in accordance with the terms of this
Indenture or (ii) Indebtedness of the Company or any Restricted Subsidiary
incurred in connection with or in contemplation of, or to provide all or any
portion of the funds or credit support utilized to consummate, the acquisition
by the Company or such Restricted Subsidiary of property used or useful in a
Permitted Business (whether through the direct purchase of assets or the
purchase of Capital Stock of, or merger or consolidation with, any Person
owning such assets); provided that after giving effect to such
incurrence of Indebtedness either (A) the Company would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Total Leverage Ratio
test set forth in the first paragraph of this Section 4.9 or (B) the
Total Leverage Ratio would be less than or equal to such Total Leverage Ratio
immediately prior to such acquisition;


 


(16)         Indebtedness
arising from the honoring by a bank or financial institution of a check, draft
or similar instrument drawn against insufficient funds in the ordinary course
of business; provided that such Indebtedness is extinguished within five
Business Days of its incurrence;


 


(17)         Indebtedness
of the Company or any of its Restricted Subsidiaries supported by a letter of
credit issued pursuant to a Credit Facility in a principal amount not in excess
of the stated amount of such letter of credit;


 


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(18)         Indebtedness
incurred by a Receivables Subsidiary in connection with a Receivables Facility;


 


(19)         Indebtedness
consisting of promissory notes issued by the Company or any Guarantor to
current or former officers, directors, consultants and employees, their
respective estates, spouses, former spouses, heirs or family members to finance
the purchase or redemption of Equity Interests of the Company or any of its
direct or indirect parent companies permitted by Section 4.7;


 


(20)         Indebtedness
of the Company or any Restricted Subsidiary to the extent the proceeds of such
Indebtedness are deposited and used to defease the Notes as described in Article
VIII hereof;


 


(21)         Indebtedness
of the Company or any Restricted Subsidiary consisting of the financing of
insurance premiums in the ordinary course of business;


 


(22)         cash
management obligations and Indebtedness in respect of netting services,
employee credit card programs or similar arrangements in connection with cash
management and deposit accounts or security accounts;


 


(23)         Indebtedness
representing deferred compensation to employees of the Company or any
Restricted Subsidiary incurred in the ordinary course of business; and


 


(24)         Indebtedness
or Preferred Stock of Foreign Subsidiaries in an aggregate amount not to exceed
$50.0 million at any one time outstanding.


 


For purposes of determining compliance with
this Section 4.9, in the event that an item of proposed Indebtedness
meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (24) above, or is entitled to be incurred
pursuant to the first paragraph of this Section 4.9, the Company will be
permitted to classify and later reclassify such item of Indebtedness in any
manner that complies with this Section 4.9 (so long as such Indebtedness
is permitted to be incurred pursuant to such provision at the time of reclassification),
and such item of Indebtedness will be treated as having been incurred pursuant
to only one of such categories. Accrual of interest or dividends, the accretion
of accreted value and the payment of interest or dividends in the form of
additional Indebtedness or Preferred Stock will not be deemed to be an
incurrence of Indebtedness or Preferred Stock for purposes of this Section
4.9 and Section 4.12. Notwithstanding the foregoing, Indebtedness
under the Credit Agreement outstanding on the Issue Date will be deemed to have
been incurred on such date in reliance on the exception provided by clause (1)
of the second paragraph of this Section 4.9 and any such Indebtedness
that was outstanding under the Credit Agreement as of the Issue Date may not
later be reclassified.


 


For purposes of determining compliance with
any U.S. dollar restriction on the incurrence of Indebtedness where the
Indebtedness incurred is denominated in a different currency, the amount of
such Indebtedness will be the U.S. Dollar Equivalent determined on the date of
the incurrence of such Indebtedness; provided, however, that if
any such Indebtedness denominated in a different currency is subject to a
currency agreement with respect to U.S. dollars covering all principal,
premium, if any, and interest payable on such Indebtedness, the 


 


75

















 


amount of such Indebtedness expressed in U.S.
dollars will be as provided in such currency agreement. The principal amount of
any refinancing Indebtedness incurred in the same currency as the Indebtedness
being refinanced will be the U.S. Dollar Equivalent of the Indebtedness being
refinanced, except to the extent that (1) such U.S. Dollar Equivalent was
determined based on a currency agreement, in which case the refinancing
Indebtedness will be determined in accordance with the preceding sentence, and
(2) the principal amount of the refinancing Indebtedness exceeds the principal
amount of the Indebtedness being refinanced, in which case the U.S. Dollar
Equivalent of such excess will be determined on the date such refinancing Indebtedness
is incurred. The maximum amount of Indebtedness that the Company and its
Restricted Subsidiaries may incur pursuant to this Section 4.9 shall not
be deemed to be exceeded, with respect to any outstanding Indebtedness, solely
as a result of fluctuations in the exchange rate of currencies.


 


The Company shall not, directly or
indirectly, incur any Indebtedness that is or purports to be by its terms (or
by the terms of any agreement governing such Indebtedness) contractually
subordinated or junior in right of payment to any Indebtedness (including
Acquired Debt) of the Company, unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such Indebtedness) made expressly
subordinate to the Notes to the extent and in the same manner as such
Indebtedness is subordinated to other Indebtedness of the Company. No Guarantor
will, directly or indirectly, incur any Indebtedness that is or purports to be
by its terms (or by the terms of any agreement governing such Indebtedness) contractually
subordinated or junior in right of payment to any Indebtedness (including
Acquired Debt, but excluding Designated Senior Indebtedness) of such Guarantor
unless such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate to such Guarantor’s Guarantee
to the extent and in the same manner as such Indebtedness is subordinated to
other Indebtedness of such Guarantor. Indebtedness shall not be considered
subordinate or junior in right of payment by virtue of being secured to a
greater or lesser extent or with different priority.


 


Notwithstanding anything to the contrary
contained in the first paragraph of this Section 4.9 or in the second
paragraph of this Section 4.9, no Restricted Subsidiary of the Company
that is not a Guarantor shall incur any Indebtedness or issue any Preferred
Stock in reliance on the first paragraph of this Section 4.9 or clause
(15) of the second paragraph of this Section 4.9, or guarantee (in
reliance on clause (13) of the second paragraph of this Section 4.9) any
Indebtedness incurred by the Company or a Restricted Subsidiary in reliance on
the first paragraph of this Section 4.9 or clause (15) of the second
paragraph of this Section 4.9 (collectively, the “Limited
Non-Guarantor Debt Exceptions”), if the amount of such Indebtedness or
Preferred Stock, when aggregated with the amount of all other Indebtedness or
Preferred Stock outstanding under such Limited Non-Guarantor Debt Exceptions,
together with any Refinancing Indebtedness in respect thereof, would exceed
$100.0 million; provided,  that in no
event shall any Indebtedness or Preferred Stock of any Restricted Subsidiary
that is not a Guarantor (x) existing at the time it became a Restricted
Subsidiary or (y) assumed in connection with any acquisition, merger or
acquisition of minority interests of a non-Wholly Owned Subsidiary (and in the
case of clauses (x) and (y), not created in contemplation of such Person
becoming a Restricted Subsidiary or such acquisition, merger or acquisition of
minority interests) be deemed to be Indebtedness outstanding under the Limited
Non-Guarantor Debt Exceptions for purposes of this paragraph.


 


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SECTION 4.10       Limitation on Asset
Sales.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale unless:


 


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


 


(2)           at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.


 


For purposes of clause (2) above, the amount
of (i) any liabilities other than contingent liabilities (as shown on the
Company’s or the applicable Restricted Subsidiary’s most recent balance sheet
or in the notes thereto) of the Company or any Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Notes or the
Guarantees) that are assumed by the transferee of any such assets and from
which the Company and all Restricted Subsidiaries have been validly released by
the applicable creditor(s) in writing, (ii) any debt securities received by the
Company or such Restricted Subsidiary from such transferee that are converted
by the Company or Restricted Subsidiary into cash (to the extent of the cash
received) within 90 days following the closing of such Asset Sale, (iii) any
assets described in clause (2) or (3) below, and (iv) any Designated Non-cash
Consideration received by the Company or any of its Restricted Subsidiaries in
such Asset Sale having an aggregate fair market value (as determined in good
faith by the Board of Directors of the Company), taken together with all other
Designated Non-cash Consideration received pursuant to this clause (iv) that is
at that time outstanding, not to exceed the greater of (x) $75.0 million and
(y) an amount equal to 2.0% of Total Assets of the Company on the date on which
such Designated Non-cash Consideration is received (with the fair market value
of each item of Designated Non-cash Consideration being measured at the time
received without giving effect to subsequent changes in value), shall be deemed
to be cash for purposes of this paragraph and for no other purpose.


 


Within 365 days after the receipt of any Net
Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, as the
case may be, may apply those Net Proceeds at its option:


 


(1)           (i) to reduce
Obligations under Secured Indebtedness of the Company or any Restricted
Subsidiary, (ii) to reduce Obligations under Indebtedness of a Restricted
Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company
or another Restricted Subsidiary), (iii) to reduce Obligations under any
Indebtedness outstanding under the Credit Facilities (other than Subordinated
Indebtedness) or (iv) to reduce Indebtedness of the Company that ranks pari passu in right of payment  with the Notes or Indebtedness of a Guarantor
that ranks pari passu in right of payment  with such Guarantor’s Guarantee of the Notes
(provided that if the Company shall so reduce Obligations under Indebtedness
that ranks pari passu in right of payment  with the Notes or the Guarantees (other than
Indebtedness specified in clauses (i) through (iii) above), it will equally and
ratably reduce Obligations under the Notes through open-market purchases (to
the extent such purchases are at or above 100% of the principal amount thereof)
or by causing the Company to make an Asset Sale Offer (in accordance with the 


 


77

















 


procedures set
forth below in this Section 4.10) to all Holders of Notes to purchase at
a purchase price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest and Additional Interest, if any, on the pro rata principal amount of Notes), in each
case other than Indebtedness owed to Parent or any Restricted Subsidiary;


 


(2)           to an investment in (A)
any one or more businesses; provided that such investment in any
business is in the form of the acquisition of Capital Stock and results in the
Company or a Restricted Subsidiary owning an amount of the Capital Stock of
such business such that such business constitutes a Restricted Subsidiary, (B)
capital expenditures or (C) other non-current assets, in each of (A), (B) and
(C), used or useful in a Permitted Business;


 


(3)           to an investment in (A)
any one or more businesses; provided that such investment in any
business is in the form of the acquisition of Capital Stock and results in the
Company or a Restricted Subsidiary owning an amount of the Capital Stock of
such business such that such business constitutes a Restricted Subsidiary, (B)
properties or (C) assets that, in each of (A), (B) and (C), replace the
businesses, properties and assets that are the subject of such Asset Sale; and
or


 


(4)           to make any Seed
Capital Investment.


 


Any Net Proceeds from an Asset Sale not
applied or invested in accordance with the preceding paragraph within 365 days
from the date of the receipt of such Net Proceeds shall constitute “Excess
Proceeds”; provided that if during such 365-day period the Company
or a Restricted Subsidiary enters into a definitive binding agreement
committing it to apply such Net Proceeds in accordance with the requirements of
clause (2) or (3) of the immediately preceding paragraph after such 365th day,
such 365-day period will be extended with respect to the amount of Net Proceeds
so committed for a period not to exceed 180 days until such Net Proceeds are
required to be applied in accordance with such agreement (or, if earlier, until
termination of such agreement).


 


When the aggregate amount of Excess Proceeds
exceeds $25.0 million, the Company or the applicable Restricted Subsidiary will
make an offer (an “Asset Sale Offer”) to all Holders of Notes and
Indebtedness that ranks pari passu with the
Notes and contains provisions similar to those set forth in this Indenture with
respect to offers to purchase with the proceeds of sales of assets to purchase,
on a pro rata basis, the maximum principal
amount of Notes and such other Indebtedness that ranks pari passu with the Notes that may be purchased out of the Excess
Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase, and will be payable in cash.


 


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


 


If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company or the applicable Restricted
Subsidiary may use those Excess Proceeds for any purpose not 


 


78

















 


otherwise prohibited by this Indenture. If
the aggregate principal amount of Notes tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Registrar will select the Notes to
be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be
reset at zero.


 


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


 


SECTION 4.11       Limitation on
Transactions with Affiliates.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries to, make any payment to, or sell, lease, assign,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”)
involving aggregate consideration in excess of $10.0 million, unless:


 


(1)           the Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or Restricted Subsidiary with an
unrelated Person; and


 


(2)           with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25.0 million, a majority of the Board of
Directors of the Company (and, if any, a majority of the disinterested members
of the Board of Directors of the Company with respect to such Affiliate
Transaction) have determined in good faith that the criteria set forth in the
immediately preceding clause (1) are satisfied and have approved the relevant
Affiliate Transaction as evidenced by a Board Resolution.


 


The following items will not be deemed to be
Affiliate Transactions and, therefore, will not be subject to the provisions of
the prior paragraph:


 


(1)           any
transaction with the Company, a Restricted Subsidiary, an Investment Vehicle or
joint venture or similar entity which would constitute an Affiliate Transaction
solely because the Company or a Restricted Subsidiary owns an equity interest
in or otherwise controls such Restricted Subsidiary, joint venture or similar
entity;


 


(2)           Restricted
Payments and Permitted Investments (including Seed Capital Investments)
permitted by this Indenture;


 


79

















 


(3)           the
payment by the Company or any of its Restricted Subsidiaries of management,
consulting, monitoring and advisory fees, termination or indemnification
payments and related reasonable expenses pursuant to the Management Agreement;


 


(4)           payments
in respect of reasonable employment, severance and any other compensation
arrangements with, and fees and reasonable expenses paid to, and indemnities
provided on behalf of (and entering into related agreements with) officers,
directors, employees or consultants of the Company, any of its direct or
indirect parent companies, or any Restricted Subsidiary, in the ordinary course
of business;


 


(5)           payments
made by the Company or any Restricted Subsidiary for any financial advisory,
financing, underwriting or placement services or in respect of other investment
banking activities, including, without limitation, in connection with
acquisitions or divestitures, which payments are approved by majority of the
Board of Directors of the Company (and, if any, a majority of the disinterested
members of the Board of Directors of the Company with respect to such Affiliate
Transaction) in good faith;


 


(6)           transactions
in which the Company or any Restricted Subsidiary delivers to the Trustee a
letter from an Independent Financial Advisor stating that such transaction is
fair to the Company or such Restricted Subsidiary from a financial point of
view or meets the requirements of clause (i) of the first paragraph of
this Section 4.11;


 


(7)           payments
or loans (or cancellations of loans) to employees or consultants of the Company
or any of its direct or indirect parent companies or any Restricted Subsidiary
which are approved by the Board of Directors of the Company in good faith and
which are otherwise permitted under this Indenture;


 


(8)           payments
made or performance under any agreement as in effect on the Issue Date (other
than the Management Agreement (which are permitted under clause (3) of the
second paragraph of this Section 4.11), but including, without
limitation, each of the other agreements entered into in connection with the
Transactions) that are disclosed in the Offering Memorandum, including additional
parties that may be added subsequent to the Issue Date and any amendment
thereto to the extent such an amendment is not adverse to the interests of the
Holders of the Notes in any material respect;


 


(9)           transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services (including Parent and its Subsidiaries), in each case in the ordinary
course of business and otherwise in compliance with the terms of this Indenture
that are fair to the Company or its Restricted Subsidiaries, in the reasonable
determination of the members of the Board of Directors of the Company or the
senior management thereof, or are on terms at least as favorable as would
reasonably have been entered into at such time with an unaffiliated party;


 


(10)         if
otherwise permitted hereunder, the issuance of Equity Interests (other than
Disqualified Stock) of the Company to any Permitted Holder, any director,
officer, 


 


80

















 


employee or consultant of the Company or its Subsidiaries or any other
Affiliates of the Company (other than a Subsidiary);


 


(11)         any
transaction permitted by Section 5.1;


 


(12)         any
transaction with a Receivables Subsidiary effected as part of a Receivables
Facility;


 


(13)         the
Transactions and the payment of the Transaction Expenses;


 


(14)         payments
by the Company and its Restricted Subsidiaries to each other pursuant to tax
sharing agreements or arrangements among Parent and its subsidiaries on customary
terms (including, without limitation, transfer pricing initiatives);


 


(15)         payments
to investment and commercial banks (or their affiliates) for financial advisory
and other investment and commercial banking services and financings provided by
them in the ordinary course of business on ordinary commercial terms;


 


(16)         investments
by Affiliates of the Company in investment funds managed by the Company or any
of its Restricted Subsidiaries on terms generally available to investors in
such investment funds; and


 


(17)         any
transaction with, or payment to, any financial institution or distribution
participant in connection with the sale or distribution of securities or
providing investment management services in the ordinary course of business of
the Company and its Restricted Subsidiaries.


 


SECTION 4.12       Limitation on Liens.


 


The Company will not, and will not permit any
of its Restricted Subsidiaries that are Guarantors to, directly or indirectly,
create, incur, assume or suffer to exist any Lien that secures obligations
under any Indebtedness on any asset or property of the Company or any
Restricted Subsidiary, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless:


 


(1)           in
the case of Liens securing Subordinated Indebtedness of the Company, the Notes
are secured by a Lien on such property, assets or proceeds of the Company that
is senior in priority to such Liens;


 


(2)           in
the case of Liens securing Subordinated Indebtedness of any Guarantor, the
Guarantee of such Guarantor is secured by a Lien on such property, assets or
proceeds of such Guarantor that is senior in priority to such Liens;


 


(3)           in
the case of Liens securing Indebtedness (other than Subordinated Indebtedness)
of the Company, the Notes are equally and ratably secured by a Lien on such
property, assets or proceeds of the Company; and


 


81

















 


(4)           in
the case of Liens securing Indebtedness (other than Subordinated Indebtedness)
of any Guarantor, the Guarantee of such Guarantor is equally and ratably secured
by a Lien on such property, assets or proceeds of such Guarantor.


 


The foregoing shall not apply to:


 


(i)            Liens existing on the
Issue Date to the extent and in the manner such Liens are in effect on the
Issue Date;


 


(ii)           Liens securing all of
the Notes and the related Guarantees and all of the Notes issued in exchange
therefor pursuant to the Registration Rights Agreement (including Notes issued
in exchange for Additional Notes) and secured by a Lien (in each case in
accordance with the terms of this Indenture) and the related Guarantees;


 


(iii)          Liens securing
Indebtedness permitted to be incurred pursuant to clauses (1) and (5) of the
second paragraph of Section 4.9 ; or


 


(iv)          Permitted Liens.


 


Any Lien created for the benefit of the
Holders of the Notes pursuant to this Section 4.12 shall be deemed
automatically and unconditionally released and discharged upon the release and
discharge of each of the Liens described in clauses (1), (2), (3) and (4)
above.


 


SECTION 4.13       Payments for Consent.


 


The Company will not, and will 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 Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all Holders of the Notes that so consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.


 


SECTION 4.14       Offer To Purchase upon
Change of Control.


 


If a Change of Control occurs, unless the
Company at such time has given notice of redemption under Section 3.7
with respect to all outstanding Notes, each Holder of Notes will have the right
to require the Company to repurchase all or any part (equal to $2,000 or
integral multiples of $1,000 in excess thereof) of that Holder’s Notes pursuant
to a Change of Control Offer on the terms set forth in this Indenture. In the
Change of Control Offer, the Company will offer a payment (a “Change of
Control Payment”) in cash equal to 101% of the aggregate principal amount
of Notes repurchased plus accrued and unpaid interest and Additional Interest,
if any, on the Notes repurchased, to the date of purchase. Within 30 days
following any Change of Control, unless the Company at such time has given
notice of redemption under Section 3.7 with respect to all
outstanding Notes, or, at the Company’s option, in advance of a Change of
Control, the Company will mail a notice to each Holder, with a copy to the
Trustee and each Agent, describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the date
of such Change of Control Payment specified in the notice, which date shall be
no earlier than 30 days and no later than 60 days from the date such 


 


82

















 


notice is mailed (the “Change of Control
Payment Date”), pursuant to the procedures required by this Indenture and
described in such notice. The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with the repurchase of the Notes as a result of a Change of Control.
To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control provisions of this Indenture, the Company
will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Change of Control provisions
of this Indenture by virtue of such conflict.


 


On the Change of Control Payment Date, the
Company will, to the extent lawful:


 


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


 


(2)           deposit with the paying
agent an amount equal to the Change of Control Payment in respect of all Notes
or portions of Notes properly tendered; and


 


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


 


The Paying Agent will promptly mail to each
Holder of Notes properly tendered the Change of Control Payment for such Notes,
and the Trustee will promptly authenticate and mail (or cause to be transferred
by book entry) to each holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each
new Note will be in a minimum principal amount of $2,000 or integral multiples
of $1,000 in excess thereof.


 


The Company is not required to make a Change
of Control Offer upon a Change of Control if (i) a third party makes the Change
of Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer or (ii) a notice of redemption for
all Notes has been given pursuant to Section 3.9 of this Indenture
unless and until there is a default in the payment of the applicable redemption
price. A Change of Control Offer may be made in advance of a Change of Control
and may be conditional upon the occurrence of a Change of Control if a
definitive agreement is in place for the Change of Control at the time the
Change of Control Offer is made.


 


The provisions described above that require
the Company to make a Change of Control Offer following a Change of Control
will be applicable whether or not any other provisions of this Indenture are
applicable.


 


SECTION 4.15       Corporate Existence.


 


Subject to Section 4.14 and Article V
hereof, as the case may be, the Company and the Guarantors shall do or cause to
be done all things necessary to preserve and keep in full force and effect the
corporate, partnership, limited liability company or other existence of Parent
and 


 


83

















 


each of its Subsidiaries in accordance with
the respective organizational documents (as the same may be amended from time
to time) and the rights (charter and statutory), licenses and franchises of
Parent and its Subsidiaries;  provided
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders.


 


SECTION 4.16       Business Activities.


 


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


 


SECTION 4.17       Additional Guarantees.


 


After the Issue Date, the Company shall cause
(i) each of its Domestic Subsidiaries (other than any Unrestricted Subsidiary)
that incurs any Indebtedness in excess of $10.0 million (other than
Indebtedness permitted to be incurred pursuant to clauses (3), (6), (7), (8),
(9), (10), (11), (16) and (18) of the second paragraph of Section 4.9 )
and (ii) each Restricted Subsidiary that guarantees any Indebtedness of the
Company or any of the Guarantors, in each case, within ten (10) Business Days
of such incurrence of any such Indebtedness or guarantee of such Indebtedness,
to execute and deliver to the Trustee a Guarantee, together with an Opinion of
Counsel, pursuant to which such Restricted Subsidiary shall unconditionally
Guarantee, on a joint and several basis, the full and prompt payment of the
principal of, premium, if any, and interest on the Notes and all other
obligations under this Indenture on the same terms and conditions as those set
forth in this Indenture.


 


Each Guarantee shall automatically be
released under the circumstances set forth in, and in accordance with, Article
X.


 


SECTION 4.18       Limitation on Prepayment
or Modification of Existing Notes.


 


The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly purchase, redeem,
defease or otherwise acquire or retire for value (for purposes of this Section
4.18, “prepay”) any
of the Existing Notes prior to the final maturity date thereof (as in effect on
the Issue Date); provided that the Company may:


 


(1)           prepay
any of the Existing Notes which have a final maturity date (as in effect on the
Issue Date) in 2010; provided that, in the case of any such prepayment
funded with the proceeds of the incurrence of Indebtedness, such Indebtedness
(A) is incurred pursuant to clause (1) of the second paragraph of Section
4.9 or (B) shall have a Weighted Average Life to Maturity which is longer
than the Weighted Average Life to Maturity of the Notes, and shall have a
Stated Maturity later than the Stated Maturity of the Notes; and


 


(2)           so
long as no Default or Event of Default exists or would result therefrom, prepay
any other Existing Notes which have a final maturity date (as in effect on the 


 


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Issue Date) in 2015; provided that (A) any such prepayment shall
be funded only with the proceeds of unsecured Indebtedness incurred
substantially concurrently with such prepayment and (a) at the time of incurrence
and after giving pro forma effect thereto and to the application of the
proceeds thereof, (I) the Guaranteed Indebtedness Leverage Ratio shall be
no greater than 7.20 to 1.0 or (II) such Indebtedness is incurred pursuant
to clause (14) of the second paragraph of Section 4.9  and (b) such Indebtedness shall have a
Weighted Average Life to Maturity which is longer than the Weighted Average
Life to Maturity of the Notes, and shall have a Stated Maturity later than the
Stated Maturity of the Notes or (B) after giving effect thereto, the
amount available for Restricted Payments under clause (3) of the first
paragraph of Section 4.7. shall not be less than $0.


 


The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, amend any of the Existing Notes or the
Existing Notes Indenture, or any supplemental indenture in respect thereof, in
any way (i) to make the final maturity date of any series of Existing Notes earlier
than in effect on the Issue Date, (ii) to shorten the Weighted Average Life to
Maturity of any series of the Existing Notes, (iii) to modify or change any
provision of the Existing Notes Indenture or the related definitions in a
manner that is more restrictive to the Company than the Existing Notes
Indenture as in effect on the Issue Date, (iv) to, directly or indirectly,
create, incur, assume or suffer to exist any Lien that secures any of the
Existing Notes, (v) to provide guarantees of any of the Existing Notes by any
Subsidiary of the Company or (vi) to prohibit the making of the Guarantees or
the creation of Liens in favor of the Notes and the Guarantees.


 


SECTION 4.19       Further Instruments and
Acts.


 


Upon request by the Trustee, the Company
shall execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.


 


ARTICLE V


 


SUCCESSORS


 


SECTION 5.1         Merger, Consolidation
or Sale of Assets.


 


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


 


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


 


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assignment, transfer, conveyance, lease or other disposition has been
made, as the case may be, being herein called the “Successor Company”);


 


(2)           the
Successor Company (if other than the Company) assumes all the obligations of
the Company under the Notes, this Indenture and the Registration Rights
Agreement pursuant to agreements reasonably satisfactory to the Trustee;


 


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


 


(4)           immediately
after giving pro forma effect to such transaction and any related financing
transactions, as if the same had occurred at the beginning of the applicable
four-quarter period, either (a) the Successor Company would be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Total Leverage
Ratio test set forth in the first paragraph of Section 4.9 or (b) the
Total Leverage Ratio for the Successor Company and its Restricted Subsidiaries
would be less than such ratio for the Company and its Restricted Subsidiaries
immediately prior to such transaction; and


 


(5)           each
Guarantor (except if it is the other party to the transactions described above
in which case clause (2) above shall apply) shall have by supplemental
indenture confirmed that its Guarantee shall apply to such Person’s obligations
under the Notes, this Indenture and the Registration Rights Agreement.


 


(b)           Notwithstanding the foregoing, clauses (3)
and (4) above will not be applicable to (a) any Restricted Subsidiary
consolidating with, merging into or selling, assigning, transferring,
conveying, leasing or otherwise disposing of all or part of its properties and
assets to the Company or to another Guarantor and (b) the Company merging with
an Affiliate solely for the purpose of reincorporating the Company, as the case
may be, in another jurisdiction. This covenant is not applicable to the merger
effected pursuant to the Acquisition Agreement.


 


(c)           For purposes of this Section 5.1, the
sale, lease, conveyance, assignment, transfer or other disposition of all or
substantially all of the properties and assets of one or more Restricted
Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Restricted Subsidiaries, would constitute all or
substantially all of the properties and assets of the Company on a consolidated
basis, shall be deemed to be the sale, lease, conveyance, assignment, transfer
or other disposition of all or substantially all of the properties and assets
of the Company.


 


(d)           The predecessor company will be released
from its obligations under this Indenture and the Notes and the Successor
Company will succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture and the Notes, but, in the case
of a lease of all or substantially all its assets, the predecessor company will
not be released from the obligation to pay the principal of and interest on the
Notes.


 


(e)           In connection with any consolidation or
merger or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company contemplated
by this Section 5.1, the Company shall expressly assume the
obligations under this Indenture and Notes by supplemental indenture and shall
execute and deliver to the Trustee a supplemental indenture, in form and
substance reasonably satisfactory to the Trustee, evidencing 


 


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such succession together with an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation or merger or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company contemplated by this Section
5.1 and such supplemental indenture in respect thereto complies with
this Section 5.1 and that all conditions precedent herein provided for
relating to such transaction or transactions have been complied with and that
such supplemental indenture constitutes the legal, valid and binding obligation
of the successor entity, subject to the customary exceptions.


 


SECTION 5.2         Successor Corporation
Substituted.


 


Upon any consolidation or merger, or any
sale, assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.1
hereof, the successor corporation formed by such consolidation or into or with
which the Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for (so that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor corporation and
not to the Company), and shall exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.


 


ARTICLE VI


 


DEFAULTS AND
REMEDIES


 


SECTION 6.1         Events of Default.


 


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


 


(1)           the Company defaults in
payment when due and payable, upon redemption, acceleration or otherwise, of
principal of, or premium, if any, on the Notes;


 


(2)           the Company defaults in
the payment when due of interest or Additional Interest, if any, on or with
respect to the Notes and such default continues for a period of 30 days;


 


(3)           the Company defaults in
the performance of, or breaches any covenant, warranty or other agreement
contained in, this Indenture (other than a default in the performance or breach
of a covenant, warranty or agreement which is specifically dealt with in
clauses (1) or (2) above) and such default or breach continues for a period of
60 days (or 90 days with respect to Section 4.3) after notice of the
default or breach has been given to the Company by the Trustee or the Holders
of at least 25% of the aggregate principal amount of the outstanding Notes;


 


(4)           a default under any
mortgage, indenture or instrument under which there is issued or by which there
is secured or evidenced any Indebtedness for money borrowed by Parent, the
Company or any Restricted Subsidiary or the payment of which is guaranteed by
Parent, the Company or any Restricted Subsidiary (other than Indebtedness owed
to Parent, the Company or a Restricted Subsidiary), whether such Indebtedness
or guarantee now exists 


 


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or is created
after the Issue Date, if (A) such default either (1) results from the failure
to pay any such Indebtedness at its stated final maturity (after giving effect
to any applicable grace periods, amendments or waivers) or (2) relates to an
obligation other than the obligation to pay principal of any such Indebtedness
at its stated final maturity and results in the holder or holders of such
Indebtedness causing such Indebtedness to become due prior to its stated
maturity and (B) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at stated final maturity (after giving effect to any applicable grace
periods), or the maturity of which has been so accelerated, aggregate $50.0
million (or its foreign currency equivalent) or more at any one time
outstanding;


 


(5)           the failure by Parent,
the Company or any Significant Subsidiary (or any group of Subsidiaries that,
taken together as of the date of the most recent audited financial statements
of the Company, would constitute a Significant Subsidiary) to pay final
judgments aggregating in excess of $50.0 million (other than any judgments
covered by indemnities or insurance policies as to which liability coverage has
not been denied by the insurance company or indemnifying party), which final
judgments remain unpaid, undischarged and unstayed for a period of more than 60
days after the applicable judgment becomes final and non-appealable;


 


(6)           the Guarantee of Parent
or a Significant Subsidiary that is a Guarantor or any group of Subsidiaries
that are Guarantors and that, taken together as of the date of the most recent
audited financial statements of the Company, would constitute a Significant
Subsidiary ceases to be in full force and effect (except as contemplated by the
terms hereof) or any Guarantor denies or disaffirms its obligations under this
Indenture or any Guarantee, other than by reason of the release of the
Guarantee in accordance with the terms of this Indenture; or


 


(7)           (i) Parent, the Company,
any Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:


 


(a)           commences
a voluntary case,


 


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


 


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


 


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


 


(e)           admits
in writing its general inability to pay its debts as they become due;


 


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


 


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


 


(b)           appoints
a custodian of, or for all or substantially all of the assets of, Parent, the
Company or any Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary; or


 


(c)           orders
the liquidation of Parent, the Company or any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary,


 


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


 


SECTION 6.2         Acceleration.


 


If an Event of Default (other than an Event
of Default specified in clause (7) above with respect to the Company)
shall occur and be continuing, the Trustee, by written notice to the Company,
or the Holders of at least 25% in aggregate principal amount of the outstanding
Notes, by written notice to the Company and the Trustee, may declare the
principal of the Notes and any accrued interest on the Notes to be due and
payable, which notice shall specify the respective Event of Default and that it
is a “notice of acceleration” (the “Acceleration Notice”), and the same
shall become immediately due and payable.


 


If an Event of Default specified in
clause (7) above with respect to the Company occurs and is continuing,
then all unpaid principal of, and premium, if any, and accrued and unpaid interest
and Additional Interest, if any, on all of the outstanding Notes shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder of the Notes.


 


At any time after a declaration of
acceleration with respect to the Notes as described in the two preceding
paragraphs, the holders of a majority in principal amount of the Notes may
rescind and cancel such declaration and its consequences:


 


(1)           if
the rescission would not conflict with any judgment or decree;


 


(2)           if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration;


 


(3)           to
the extent the payment of such interest is lawful, interest on overdue installments
of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid;


 


(4)           if
the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances; and


 


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(5)           in
the event of the cure or waiver of an Event of Default of the type described in
clause (7) of Section 6.1, the Trustee shall have received an
Officers’ Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived.


 


No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


In the event of any Event of Default
specified in clause (4) of Section 6.1, such Event of Default
and all consequences thereof (excluding, however, any resulting payment
default) will be annulled, waived and rescinded, automatically and without any
action by the Trustee or the Holders of the Notes, if within 30 days after
such Event of Default arose the Company delivers an Officers’ Certificate to
the Trustee stating that (x) the Indebtedness or guarantee that is the
basis for such Event of Default has been discharged, (y) the holders
thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default or (z) the default that
is the basis for such Event of Default has been cured, it being understood that
in no event shall an acceleration of the principal amount of the Notes as
described above be annulled, waived or rescinded upon the happening of any such
events.


 


SECTION 6.3         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, interest and Additional Interest, if any, on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.


 


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


 


SECTION 6.4         Waiver of Past
Defaults.


 


The Holders of a majority in principal amount
of the Notes issued and then outstanding under this Indenture by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default under this Indenture, and its consequences, except
a default in the payment of the principal of or interest on Notes (other than
non-payment of principal and interest that has become due solely because of an
acceleration), which shall require the consent of all of the Holders of the
Notes then outstanding.


 


SECTION 6.5         Control by Majority.


 


The Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, (i) the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders or that may involve the Trustee in personal liability or
expense that is not adequately indemnified in the judgment of the 


 


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Trustee, and (ii) the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction. In case an Event of Default shall occur (which shall not be
cured), the Trustee will be required, in the exercise of its power, to use the
degree of care of a prudent person in the conduct of such person’s own affairs.
Notwithstanding any provision to the contrary in this Indenture, the Trustee is
under no obligation to exercise any of its rights or powers under this
Indenture at the request, order or direction of any Holder, unless such Holder
shall offer to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.


 


SECTION 6.6         Limitation on Suits.


 


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


 


(a)           the
Holder gives to the Trustee written notice of a continuing Event of Default or
the Trustee receives such notice from the Company;


 


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


 


(c)           such
Holder or Holders offer and, if requested, provide to the Trustee indemnity or
security reasonably 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 such indemnity or
security; and


 


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


 


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


 


SECTION 6.7         Rights of Holders of
Notes To Receive Payment.


 


Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of principal, premium, if
any, and interest on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.


 


SECTION 6.8         Collection Suit by
Trustee.


 


If an Event of Default specified in Section 6.1(1)
or (2) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal of, premium and interest remaining unpaid
on the Notes and interest on overdue principal and, to the extent lawful,
interest and such 


 


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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 6.9         Trustee May File
Proofs of Claim.


 


The Trustee is authorized to file such proofs
of claim and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other securities or property payable or deliverable upon the
conversion or exchange of the Notes or on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 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 7.7
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


SECTION 6.10       Priorities.


 


If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money and property in
the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.7 hereof, including payment of all
reasonable 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 and Additional
Interest ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any, and
interest and Additional Interest, respectively;


 


Third:  without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture and the Notes; and


 


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


 


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The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 6.10.


 


SECTION 6.11       Undertaking for Costs.


 


In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees 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 pursuant to Section 6.7
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.


 


ARTICLE VII


 


TRUSTEE


 


SECTION 7.1         Duties of Trustee.


 


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


 


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


 


(i)            the duties of the
Trustee shall be determined solely by the express provisions of this Indenture
or the TIA (as if this Indenture were qualified under the TIA prior to such
qualification) and the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA (as if this Indenture were
qualified under the TIA prior to such qualification) and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and


 


(ii)           in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).


 


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


 


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


 


(i)            this paragraph does
not limit the effect of paragraph (b) of this Section 7.1;


 


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(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 6.5
hereof.


 


(d)           Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.


 


(e)           No provision of this Indenture shall require
the Trustee to expend or risk its own funds or incur any loss, liability or
expense. The Trustee shall be under no obligation to exercise any of its rights
and powers under this Indenture at the request of any Holders, unless such
Holder shall have offered to the Trustee security and indemnity satisfactory to
it against any loss, 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 Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.


 


SECTION 7.2         Rights of Trustee.


 


(a)           The Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting on 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. Prior
to taking, suffering or admitting any action, the Trustee may consult with
counsel of the Trustee’s own choosing and the Trustee shall be fully protected
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in conclusive reliance on the advice or opinion of
such counsel.


 


(c)           The Trustee may act through its attorneys
and agents and shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care.


 


(d)           The Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by this Indenture. Any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by an Officers’ Certificate and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution. Whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon an Officers’ Certificate.


 


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


 


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


 


(g)           The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
documents, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine during normal business hours the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company, and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.


 


(h)           The rights, privileges, protections and
benefits given to the Trustee, including, without limitation, its rights to
compensation and to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, the Paying Agent and the
Registrar, and to each other agent, custodian and other Persons employed to act
hereunder.


 


(i)            The Trustee may request that the Company
deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture, which Officers’ Certificate may be signed by any person authorized
to sign an Officers’ Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.


 


(j)            The Trustee shall not be deemed to have
notice or be charged with knowledge of any Default or Event of Default unless
the Trustee shall have received from the Company or any other obligor upon the
Notes or from any Holder written notice thereof at its address set forth in Section 12.2
hereof, and such notice references the Notes and this Indenture. In the absence
of any such notice, the Trustee may conclusively assume that no such Default or
Event of Default exists.


 


(k)           The permissive rights of the Trustee to do
certain things enumerated in this Indenture shall not be construed as a duty
and the Trustee shall not be answerable for other than its negligence or
willful default with respect to such permissive rights.


 


(l)            The Trustee shall not be responsible or
liable for special, indirect or consequential loss or damage of any kind
whatsoever including, but not limited to, loss or profit irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.


 


(m)          The Trustee shall not be required to give any
note, bond, or surety in respect of the execution of the trusts and powers
under this Indenture.


 


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(n)           The Trustee shall not be responsible or
liable for any failure or delay in the performance of its obligations under
this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including without limitation, acts
of God; earthquakes; fire; flood; terrorism; wars and other military
disturbances; sabotage; epidemics; riots; interruptions; loss or malfunction of
utilities, computer (hardware or software) or communication services;
accidents; labor disputes; acts of civil or military authorities and
governmental action.


 


SECTION 7.3         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 Company or any Affiliate of the Company 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 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 7.4         Trustee’s Disclaimer.


 


The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes or the Offering
Memorandum, it shall not be accountable for the Company’s use of the proceeds
from the Notes or any money paid to the Company or upon the Company’s direction
under any provision of this Indenture, it shall not be responsible for the use
or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or
any statement in the Notes or the Offering Memorandum, any statement or recital
on any Officers’ Certificate delivered to the Trustee under Article IV or Section 8.4
hereof, or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.


 


SECTION 7.5         Notice of Defaults.


 


If a Default or Event of Default occurs and
is continuing and if it is actually known to a Responsible Officer, the Trustee
shall mail to Holders 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 or Additional
Interest on any Note, the Trustee may withhold the notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determines that withholding
the notice is in the interests of the Holders.


 


SECTION 7.6         Reports by Trustee to
Holders of the Notes.


 


Once this Indenture is qualified under the
TIA, if required by the TIA, 60 days after each May 15, beginning with the
May 15 following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders 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).


 


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


 


SECTION 7.7         Compensation and
Indemnity.


 


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


 


The Company and the Guarantors, jointly and
severally, shall indemnify the Trustee (which for purposes of this Section 7.7
shall include its officers, directors, employees and agents) against any and
all claims, damage, losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.7) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder except to the extent any such loss, claim,
damage, liability or expense may be attributable to its negligence or bad faith.
The Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
one such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. Under no
circumstances shall the Trustee be liable for any consequential or punitive damages
of any kind.


 


The obligations of the Company and the
Guarantors under this Section 7.7 shall survive the satisfaction
and discharge of this Indenture or the resignation or removal of the Trustee, including
any termination under any Bankruptcy Law.


 


To secure the Company’s payment obligations
in this Section 7.7, 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 or interest, if any, on particular Notes. Such
Lien shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee, including any termination under any
Bankruptcy Law.


 


When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.1(7)
hereof occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.


 


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


 


SECTION 7.8         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 7.8.


 


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


 


(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 Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.


 


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


 


If the Trustee, after written request by any
Holder who has been a Holder for at least six months, fails to comply with Section 7.10
hereof, such Holder may, at the expense of the Company, 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 Company. Thereupon,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and the duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee,  provided
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.7 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the
Company’s and the Guarantors’ obligations under Section 7.7 hereof
shall continue for the benefit of the retiring Trustee.


 


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SECTION 7.9         Successor Trustee by
Merger, Etc.


 


If the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business (including the administration of this Indenture) 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 that is a corporation organized and doing business under the laws of
the United States of America or of any state thereof that is authorized under
such laws to exercise corporate trustee power and that is subject to
supervision or examination by federal or state authorities. The Trustee
together with its affiliates shall at all times have a combined capital surplus
of at least $50.0 million as set forth in its most recent published annual
report of condition.


 


This Indenture shall always have a Trustee
who satisfies the requirements of TIA §§ 310(a)(l), (2) and (5). The
Trustee is subject to TIA § 310(b) including the provision in
§ 310(b)(1);  provided that there shall
be excluded from the operation of TIA § 310(b)(1) any indenture or indentures
under which other securities, or conflicts of interest or participation in
other securities, of the Company or the Guarantors are outstanding if the
requirements for exclusion set forth in TIA § 310(b)(1) are met.


 


SECTION 7.11       Preferential Collection
of Claims Against the Company.


 


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


 


SECTION 7.12       Trustee’s Application
for Instructions from the Company.


 


Any application by the Trustee for written
instructions from the Company may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than 20 Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.


 


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ARTICLE VIII


 


DEFEASANCE;
DISCHARGE OF THE INDENTURE


 


SECTION 8.1         Option To Effect Legal
Defeasance or Covenant Defeasance.


 


The Company may, at the option of its Board
of Directors and evidenced by a Board Resolution set forth in an Officers’
Certificate, at any time, elect to have either Section 8.2 or 8.3
hereof applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article VIII.


 


SECTION 8.2         Legal Defeasance.


 


Upon the Company’s exercise under Section 8.1
hereof of the option applicable to this Section 8.2, the Company
shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be deemed to have been discharged from its obligations with respect to
all outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”) except for (i) the rights of Holders
of outstanding Notes to receive payments in respect of the principal of,
premium, if any, and interest and Additional Interest, if any, on such Notes
when such payments are due from the trust referred to below, (ii) the Company’s
obligations with respect to the Notes concerning issuing temporary Notes,
registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust, (iii) the rights, powers, trusts, duties and immunities of the
Trustee, and the Company’s obligations in connection therewith and (iv) the
Legal Defeasance provisions of this Indenture. For this purpose, Legal
Defeasance means that the Company 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 8.5
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all of its other obligations under such Notes and
this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder:  (a) the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium and Additional Interest, if any, and interest, if any, on
such Notes when such payments are due from the trust referred to in Section 8.4(1);
(b) the Company’s obligations with respect to such Notes under Sections 2.2,
2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2
hereof; (c) the rights, powers, trusts, duties and immunities of the
Trustee, including without limitation thereunder, under Sections 7.7,
8.5 and 8.7 hereof and the Company’s obligations in connection
therewith; (d) the Company’s rights pursuant to Section 3.7;
and (e) the provisions of this Article VIII. Subject to compliance
with this Article VIII, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3
hereof.


 


SECTION 8.3         Covenant Defeasance.


 


Upon the Company’s exercise under Section 8.1
hereof of the option applicable to this Section 8.3, the Company
shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from its obligations under the covenants contained in 


 


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Sections 4.3,  4.7,
4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15 (other than with respect to the legal existence of the Company), 4.16,
4.17, 4.18, and 5.1 hereof and the operation of Sections
6.1(3), 6.1(4), 6.1(5) and 6.1(6) 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 accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company or
any of its Subsidiaries 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 6.1
hereof, but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. In addition, upon the Company’s
exercise under Section 8.1 hereof of the option applicable to this Section 8.3,
subject to the satisfaction of the conditions set forth in Section 8.4
hereof, Sections 6.1(3),(4), (5) and (6) hereof shall
not constitute Events of Default.


 


Notwithstanding any discharge or release of
any obligations pursuant to Section 8.2 or 8.3, the Company’s
obligations in Sections 2.5, 2.6, 2.7, 2.8, 7.7,
8.6 and 8.7 shall survive until the Notes are no longer
outstanding pursuant to the last paragraph of Section 2.8. After
the Notes are no longer outstanding, the Company’s obligations in Sections 7.7,
8.6 and 8.7 shall survive.


 


SECTION 8.4         Conditions to Legal or
Covenant Defeasance.


 


The following shall be the conditions to the
application of either Section 8.2 or 8.3 hereof to the outstanding Notes:


 


(1)           the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes issued hereunder, cash in U.S. dollars, non-callable
U.S. Government Securities, or a combination of cash in U.S. dollars and
non-callable U.S. Government Securities, in amounts as will be sufficient
(without consideration of any reinvestment interest), in the opinion of a nationally
recognized investment bank, appraisal firm or firm of independent public accountants,
to pay the principal of, or interest and premium and Additional Interest, if
any, on the outstanding Notes issued hereunder on their Stated Maturity or on
the applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;


 


(2)           in
the case of Legal Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the date
of this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel in the United States will confirm that, the holders 


 


101

















 


of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;


 


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


 


(4)           no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit and the grant of any Lien securing such
borrowings);


 


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


 


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


 


(7)           the
Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel in the United States, each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.


 


SECTION 8.5         Deposited Money and
Government Securities To Be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.6 hereof,
all money and non-callable U.S. Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 8.5, the “Trustee”) pursuant to
Section 8.4 hereof in respect of the outstanding Notes shall be
held in trust, shall not be invested, and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company or any Subsidiary
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 and Additional Interest, if any, but such money
need not be segregated from other funds except to the extent required by law.


 


102

















 


The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash or non-callable U.S. Government Securities deposited pursuant to Section 8.4
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 VIII to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the written request of the Company and be relieved of
all liability with respect to any money or non-callable U.S. Government
Securities held by it as provided in Section 8.4 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 8.4(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.


 


SECTION 8.6         Repayment to Company.


 


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


 


SECTION 8.7         Reinstatement.


 


If the Trustee or Paying Agent is unable to
apply any United States dollars or non-callable U.S. Government Securities in accordance
with Section 8.2, 8.3 or 8.8 hereof, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations of the Company under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.2,
8.3 or 8.8 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.2,
8.3 or 8.8 hereof, as the case may be;  provided,
however, that, if the Company makes any payment of principal of, premium,
if any, or interest or Additional Interest, if any, on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.


 


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SECTION 8.8         Discharge.


 


The Company and the Guarantors may terminate
the obligations under this Indenture and the Notes when:


 


(1)           either


 


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


 


(b)           all
Notes that have not been delivered to the Trustee for cancellation
(i) have become due and payable, (ii) will become due and payable, or
may be called for redemption (and arrangements satisfactory to the Trustee for
the giving of notice thereof are made with the Trustee), within one year or
(iii) have been called for redemption and, in each case, the Company has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders of the Notes, cash in U.S.
dollars, non-callable U.S. Government Securities, or a combination thereof, in
amounts as will be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not
delivered to the Trustee for cancellation for principal, premium and Additional
Interest, if any, and accrued interest to the date of maturity or redemption;


 


(2)           no
Event of Default shall have occurred and be continuing on the date of the
deposit or will occur as a result of the deposit (other than a Default resulting
from borrowing of funds to be applied to such deposit and any similar and
simultaneous deposit relating to other Indebtedness, and in each case the grant
of any Lien securing such borrowing) and the deposit will not result in a
breach or violation of, or constitute a default under, any other material
instrument to which the Company is a party or by which the Company is bound;


 


(3)           the
Company shall have paid or caused to be paid all sums payable by it under this
Indenture;


 


(4)           the
Company shall have delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes issued
thereunder at maturity or the redemption date, as the case may be; and


 


(5)           the
Company shall have delivered an Officers’ Certificate and an Opinion of Counsel
in the United States (which may be subject to certain qualifications) to the
Trustee stating that all conditions precedent to satisfaction and discharge
have been satisfied.


 


In the case of clause (1)(b) of this Section 8.8,
and subject to the next sentence and notwithstanding the foregoing paragraph,
the Company’s obligations in Sections 2.5, 2.6, 2.7, 2.8,
4.1, 4.2, 4.15 (as to legal existence of the Company
only), 7.7, 8.6 and 8.7 shall survive until 


 


104

















 


the Notes are no longer outstanding pursuant
to the last paragraph of Section 2.8. After the Notes are no longer
outstanding, the Company’s obligations in Sections 7.7, 8.6
and 8.7 shall survive any discharge pursuant to Section 8.8.


 


After such delivery or irrevocable deposit,
the Trustee upon request shall acknowledge in writing the discharge of the
Company’s obligations under the Notes and this Indenture except for those
surviving obligations specified above.


 


ARTICLE IX


 


AMENDMENT,
SUPPLEMENT AND WAIVER


 


SECTION 9.1         Without Consent of
Holders of the Notes.


 


Notwithstanding Section 9.2,
without the consent of any Holders, the Company, the Guarantors, if any, and
the Trustee, at any time and from time to time, may amend or supplement this
Indenture, the Notes or the Guarantees for any of the following purposes:


 


(1)           to
cure any ambiguity, mistake, defect or inconsistency;


 


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


 


(3)           to
provide for the assumption by a Successor Company or a successor company of a
Guarantor, as applicable, of the Company’s or such Guarantor’s obligations
under this Indenture, the Notes or any Guarantee in accordance with the
provisions of this Indenture;


 


(4)           to
make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under this
Indenture of any such Holder;


 


(5)           to
secure the Notes;


 


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


 


(7)           to
add a Guarantee of the Notes;


 


(8)           to
release a Guarantor upon its sale or designation as an Unrestricted Subsidiary
or other permitted release from its Guarantee;  provided
that such sale, designation or release is in accordance with the applicable
provisions of this Indenture; or


 


(9)           to
conform the text of this Indenture, Notes or Guarantees to any provision of the
“Description of Notes” section in the Offering Memorandum.


 


No amendment of, or supplement or waiver to,
this Indenture shall adversely affect the rights of any holder of Designated
Senior Indebtedness under Article XI (or any definitions of 


 


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terms used therein), without the consent of
such holder or, in accordance with the terms of such Designated Senior Indebtedness,
the consent of the Representative of such holder or the requisite holders of
such Designated Senior Indebtedness.


 


SECTION 9.2         With Consent of
Holders of Notes.


 


With the consent of the Holders of not less
than a majority in aggregate principal amount of the outstanding Notes, the
Company, the Guarantors, if any, and the Trustee may amend or supplement this
Indenture and the Notes for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or the
Notes or of modifying in any manner the rights of the Holders under this
Indenture or the Notes, including the definitions herein;  provided,  however, that no such amendment or supplement shall,
without the consent of the Holder of each outstanding Note affected thereby:


 


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


 


(2)           reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of such Notes issued hereunder (other
than provisions relating to Sections 3.9, 4.10 and 4.14
except as set forth in clause (11) below);


 


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


 


(4)           waive
a Default or Event of Default in the payment of principal of, or interest or
premium, or Additional Interest, if any, on the Notes issued hereunder (except
a rescission of acceleration pursuant to the third paragraph under Section
6.2);


 


(5)           make
any Note payable in money other than that stated in the Notes;


 


(6)           make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of,
or interest or premium or Additional Interest, if any, on such Notes issued
hereunder or impair the right of any Holder of Notes to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes;


 


(7)           waive
a redemption payment with respect to any Note issued hereunder (other than a
payment required by Sections 3.9, 4.10 and 4.14
except as set forth in clause (11) below);


 


(8)           make
any change in the ranking or priority in right of payment of any Note that
would adversely affect the Holders of such Notes;


 


(9)           modify
or change any provision of this Indenture or the related definitions affecting
the subordination of the Guarantees in a manner that adversely affects the Holders
of the Notes;


 


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(10)         modify
the Guarantees in any manner adverse to the Holders of the Notes;


 


(11)         amend,
change or modify in any material respect the obligation of the Company to make
and consummate a Change of Control Offer in respect of a Change of Control that
has occurred or make and consummate an Asset Sale Offer in respect of an Asset
Sale that has been consummated after a requirement to make an Asset Sale Offer
has arisen; or


 


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


 


It shall not be necessary for the consent of
the Holders of Notes under this Section 9.2 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 9.2 becomes effective, the Company shall mail to the
Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amended or supplemental Indenture or waiver.


 


SECTION 9.3         Compliance with Trust
Indenture Act.


 


Every amendment or supplement to this
Indenture or the Notes shall be set forth in an amended or supplemental
indenture that complies with the TIA as then in effect.


 


SECTION 9.4         Revocation and Effect
of Consents.


 


Until an amendment, waiver or supplement
becomes effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note by notice
to the Trustee or the Company received before the date on which the Trustee
receives an Officers’ Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.


 


The Company may, but shall not be obligated
to, fix a record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver, which record date shall be at
least 30 days prior to the first solicitation of such consent. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than six months after such record date. The Company shall inform the Trustee in
writing of the fixed record date if applicable.


 


After an amendment, supplement or waiver
becomes effective, it shall bind every Holder, unless it makes a change
described in any of clauses (1) through (12) of Section 9.2, in which


 


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case, the
amendment, supplement or waiver shall bind only each Holder of a Note who has
consented to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder’s Note; provided that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of, and interest on, a Note, on or after the respective
due dates therefor, or to bring suit for the enforcement of any such payment on
or after such respective dates without the consent of such Holder.


 


SECTION 9.5         Notation on or
Exchange of Notes.


 


The Trustee may place an appropriate notation
about an amendment, supplement or waiver, the text of which shall be provided
by the Company, on any Note thereafter authenticated. The Company, 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 9.6         Trustee To Sign
Amendments, Etc.


 


The Trustee, the Paying Agent and the
Registrar shall sign any amended or supplemental indenture authorized pursuant
to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee,
the Paying Agent and the Registrar. The Company and the Guarantors may not sign
an amendment or supplemental indenture until their respective Boards of
Directors approve it. In signing or refusing to sign any amendment or
supplemental indenture the Trustee, the Paying Agent and the Registrar shall be
entitled to receive and (subject to Section 7.1 hereof) shall be
fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amendment or supplemental indenture
is authorized or permitted by this Indenture, that all conditions precedent
thereto have been met or waived, that such amendment or supplemental indenture
is not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.


 


ARTICLE X



NOTE GUARANTEES


 


SECTION 10.1       Guarantees.


 


(a)           Each Guarantor hereby jointly and severally,
fully, unconditionally and irrevocably guarantees the Notes and obligations of
the Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that:  (i) the principal of
and premium, if any, and interest and Additional Interest, if any, on the Notes
shall be paid in full when due, whether at their Stated Maturity, by acceleration,
call for redemption or otherwise (including, without limitation, the amount
that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Law), together with interest on the
overdue principal, if any, and interest on any overdue interest and Additional
Interest, if any, to the extent lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder shall be paid in
full or


 


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performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment
or renewal of any Notes or of any such other obligations, the same shall be
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at their Stated Maturity, by acceleration or
otherwise. Each of the Guarantees shall be a guarantee of payment and not of
collection.


 


(b)           Each Guarantor 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 with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.


 


(c)           Each Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or any other Person, protest, notice and
all demands whatsoever and covenants that the Guarantee of such Guarantor shall
not be discharged as to any Note except by complete performance of the
obligations contained in such Note and such Guarantee or as provided for in
this Indenture. Each of the Guarantors hereby agrees that, in the event of a
default in payment of principal or premium, if any or interest on such Note, whether
at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Note, subject to the terms and conditions set forth in this
Indenture, directly against each of the Guarantors to enforce such Guarantor’s
Guarantee without first proceeding against the Company or any other Guarantor. Each
Guarantor agrees that if, after the occurrence and during the continuance of an
Event of Default, the Trustee or any of the Holders are prevented by applicable
law from exercising their respective rights to accelerate the maturity of the
Notes, to collect interest on the Notes, or to enforce or exercise any other
right or remedy with respect to the Notes, such Guarantor shall pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.


 


(d)           If any Holder or the Trustee is required by
any court or otherwise to return to the Company or any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Guarantor, any amount paid by any of them to the Trustee or
such Holder, the Guarantee of each of the Guarantors, to the extent theretofore
discharged, shall be reinstated in full force and effect. This
paragraph (d) shall remain effective notwithstanding any contrary action
which may be taken by the Trustee or any Holder in reliance upon such amount
required to be returned. This paragraph (d) shall survive the termination
of this Indenture.


 


(e)           Each Guarantor further agrees that, as
between each 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 VI hereof for the purposes of the
Guarantee of such Guarantor, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI hereof, such obligations
(whether or


 


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not due and payable) shall forthwith become
due and payable by each Guarantor for the purpose of the Guarantee of such Guarantor.


 


SECTION 10.2       Execution and Delivery
of Guarantee.


 


To evidence its Guarantee set forth in Section 10.1,
each Guarantor agrees that a notation of such Guarantee substantially in the
form attached hereto as Exhibit B shall be endorsed on each Note
authenticated and delivered by the Trustee. Such notation of Guarantee shall be
signed on behalf of such Guarantor by an officer of such Guarantor (or, if an
officer is not available, by a board member or director) on behalf of such
Guarantor by manual or facsimile signature. In case the officer, board member
or director of such Guarantor who shall have signed such notation of Guarantee
shall cease to be such officer, board member or director before the Note on
which such Guarantee is endorsed shall have been authenticated and delivered by
the Trustee, such Note nevertheless may be authenticated and delivered as
though the Person who signed such notation of Guarantee had not ceased to be
such officer, board member or director.


 


Each Guarantor agrees that its Guarantee set
forth in Section 10.1 shall remain in full force and effect and
apply to all the Notes notwithstanding any failure to endorse on each Note a
notation of such Guarantee. The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any
Guarantee set forth in this Indenture on behalf of the Guarantors.


 


SECTION 10.3       Severability.


 


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


 


SECTION 10.4       Limitation of Guarantors’
Liability.


 


Each Guarantor and by its acceptance hereof
each Holder confirms that it is the intention of all such parties that the
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of the Federal Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal
or state law or the provisions of its local law relating to fraudulent transfer
or conveyance. To effectuate the foregoing intention, the Trustee, the Holders
and Guarantors hereby irrevocably agree that the obligations of such Guarantor
under its Guarantee shall be limited to the maximum amount that will not, after
giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee, result in the
obligations of such Guarantor under its Guarantee constituting a fraudulent
transfer or conveyance.


 


SECTION 10.5       Guarantors May
Consolidate, Etc., on Certain Terms.


 


(a)           Except as otherwise provided in this Section 10.5(a),
a Guarantor (other than Parent) may not (1) consolidate with or merge with or
into (whether or not such Guarantor is the


 


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surviving Person) another Person; or (2)
sell, assign, transfer, convey, lease or otherwise dispose of all or
substantially all of its properties or assets; unless:


 


(1)           (a)
such Guarantor is the surviving Person; or (b) the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor) or to
which such sale, assignment, transfer, conveyance, lease or other disposition
has been made is a corporation or limited liability company organized or
existing under the laws of the United States, any state of the United States or
the District of Columbia (such Guarantor or such Person, including the Person
to which such sale, assignment, transfer, conveyance, lease or other
disposition has been made, as the case may be, being herein called the “Successor
Guarantor”);


 


(2)           the
Successor Guarantor (if other than such Guarantor) assumes all the obligations
of such Guarantor under the Guarantee, this Indenture and the Registration
Rights Agreement pursuant to agreements reasonably satisfactory to the Trustee;


 


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


 


(4)           the
Net Proceeds of any such sale or other disposition of a Guarantor are applied
in accordance with the provisions of Section 4.10 hereof.


 


In case of any such consolidation, merger,
sale or conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered, together with an Opinion of
Counsel to the effect that such consolidation, merger, sale or conveyance was
made in accordance with the provisions of this Indenture, to the Trustee and
satisfactory in form to the Trustee, of the Guarantee and the due and punctual
performance of all of the covenants and conditions of this Indenture and the
Registration Rights Agreement 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. 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 of this Indenture as though all such Guarantees had been issued
at the date of the execution hereof.


 


Notwithstanding the foregoing, any Guarantor
(other than Parent) (A) may consolidate with, merge into or sell, assign,
transfer, convey, lease or otherwise dispose of all or part of its properties
and assets to the Company or to another Guarantor or (B) dissolve, liquidate or
wind up its affairs if at that time it does not hold any material assets.


 


(b)           Except as otherwise provided in this Section 10.5(b),
Parent will not (1) consolidate or merge with or into another Person
(whether or not Parent is the surviving corporation); or (2) sell, assign,
transfer, convey, lease or otherwise dispose of all or substantially all of its
properties or assets; unless:


 


(1)
(a) Parent is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than Parent) or to
which such sale, assignment, transfer, conveyance, lease or other disposition
has been made is a corporation or limited liability company organized or
existing under the laws of the United States, any state of the United States or
the District of Columbia (Parent or such


 


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Person,
including the Person to which such sale, assignment, transfer, conveyance,
lease or other disposition has been made, as the case may be, being herein
called the “Successor Parent
Guarantor”);


 


(2) the
Successor Parent Guarantor (if other than Parent) assumes all the obligations
of Parent under the Guarantee, this Indenture and the Registration Rights
Agreement pursuant to agreements reasonably satisfactory to the Trustee; and


 


(3)
immediately after such transaction, no Event of Default exists.


 


In case of any such consolidation, merger,
sale or conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered, together with an Opinion of
Counsel to the effect that such consolidation, merger, sale or conveyance was
made in accordance with the provisions of this Indenture, to the Trustee and
satisfactory in form to the Trustee, of the Guarantee and the due and punctual
performance of all of the covenants and conditions of this Indenture and the
Registration Rights Agreement to be performed by the Parent, such successor
Person shall succeed to and be substituted for the Parent with the same effect
as if it had been named herein as a Guarantor. 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 of this Indenture as though all such Guarantees had been issued at the
date of the execution hereof.


 


Notwithstanding the foregoing, Parent may
consolidate with, merge into or sell, assign, transfer, convey, lease or
otherwise dispose of all or part of its properties and assets to the Company or
to another Guarantor.


 


SECTION 10.6       Contribution.


 


In order to provide for just and equitable
contribution among the Subsidiary Guarantors, the Subsidiary Guarantors agree,
inter se, that in the event any payment or distribution is made by any
Subsidiary Guarantor (a “Funding Guarantor”) under the Guarantee, such
Funding Guarantee shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company’s obligations with respect to any Notes or any other Subsidiary
Guarantor’s obligations with respect to the Guarantee. “Adjusted Net Assets”
of such Subsidiary Guarantor at any date shall mean the lesser of the amount by
which (x) the fair value of the property of such Subsidiary Guarantor exceeds
the total amount of liabilities including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any other Subsidiary of the Subsidiary Guarantor in respect of the obligations
of its Guarantee), but excluding liabilities under the Guarantee, of such
Subsidiary Guarantor at such date and (y) the present fair salable value of the
assets of such Subsidiary Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Subsidiary Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any other Subsidiary of the Company in


 


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respect of the
obligations of such Subsidiary Guarantor under its Guarantee), excluding debt
in respect of the Guarantee of such Subsidiary Guarantor, as they become
absolute and matured.


 


SECTION 10.7       Waiver of Subrogation.


 


Until all guaranteed obligations under this
Indenture and with respect to all Notes are paid in full, each Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of such Guarantor’s obligations under the Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Notes shall not have been paid in full, such amount shall have
been deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of the Holders of the Notes, and shall forthwith be paid
to the trustee for the benefit of such holders to be credited and applied upon
the Notes, whether matured or unmatured, in accordance with the terms of this
Indenture,  Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in
this Section 10.7 is knowingly made in contemplation of such benefits.


 


SECTION 10.8       Releases of Guarantees.


 


Any Subsidiary Guarantor shall be released
and relieved of any obligations under this Guarantee in the event that:


 


(a)           the
sale, disposition or other transfer (including through merger or consolidation)
of (x) Capital Stock of such Subsidiary Guarantor if after such sale,
disposition or other transfer such Guarantor is no longer a Restricted Subsidiary,
or (y) all or substantially all the assets of such Subsidiary Guarantor, provided that, in
each case, such sale, disposition or other transfer is made in compliance with
the provisions of this Indenture;


 


(b)           the
Company designates such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the provisions of this Indenture;


 


(c)           in
the case of any Restricted Subsidiary which after the Issue Date is required to
guarantee the Notes pursuant to Section 4.17, the release or discharge
of the guarantee by such Restricted Subsidiary of all of the Indebtedness of
the Company or any Restricted Subsidiary or the repayment of all of the
Indebtedness which resulted in the obligation to guarantee the Notes, other
than as a result of payment under a guarantee of such Indebtedness; or


 


(d)           such
Subsidiary Guarantor is also a guarantor or borrower under the Credit Agreement
as in effect on the Issue Date and, at the time of release of its Guarantee,


 


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(x) has been released from its guarantee of, and all pledges and
security, if any, granted in connection with the Credit Agreement (which may be
conditioned on the concurrent release hereunder), other than as a result of
payment under a guarantee of such Indebtedness, (y) is not an obligor under any
Indebtedness (other than Indebtedness permitted to be incurred pursuant to
clause (3), (6), (7), (8), (9), (10), (11), (16) or (18) of the second
paragraph of Section 4.9 and (z) does not guarantee any Indebtedness of
the Company or any Restricted Subsidiaries (other than any guarantee that will
be released upon the release of the Guarantee hereunder).


 


Upon delivery to the Trustee of a request for
release of a Subsidiary Guarantor in accordance with the foregoing clause (a),
(b), (c) or (d), accompanied by an Officers’ Certificate and an Opinion of
Counsel to the effect that the transaction as described in such clause was
effected in accordance with the provisions of this Indenture, including without
limitation Section 4.10, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.


 


In addition, the Guarantees will be
automatically released if the Company exercises its legal defeasance option or
its covenant defeasance election pursuant to Section 8.1 or its
obligations under this Indenture are discharged pursuant to Section 8.8.


 


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


 


SECTION 10.9       Benefits Acknowledged.


 


Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that its guarantee and waivers pursuant to
its Guarantee are knowingly made in contemplation of such benefits.


 


ARTICLE XI



SUBORDINATION OF GUARANTEES


 


SECTION 11.1       Agreement To Subordinate.


 


Each Guarantor agrees, and each Holder by
accepting a Note agrees, that the obligations of such Guarantor under its
Guarantee are subordinated in right of payment, to the extent and in the manner
provided in this Article XI, to the prior payment in full of all
existing and future Designated Senior Indebtedness of such Guarantor and that
the subordination is for the benefit of and enforceable by the holders of such
Designated Senior Indebtedness. A Guarantor’s obligations under its Guarantee
shall in all respects rank pari  passu
in right of payment with all other existing and future Indebtedness of such
Guarantor; and only Indebtedness of such Guarantor that is Designated Senior
Indebtedness shall rank senior to the obligations of such Guarantor under its
Guarantee in accordance with the provisions set forth herein. The Notes are not
subordinated in right of payment to any Indebtedness. All provisions of this Article
XI shall be subject to Section 11.12.


 


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SECTION 11.2       Liquidation, Dissolution
or Bankruptcy.


 


Upon any payment or distribution of the
assets of any Guarantor to creditors upon a total or partial liquidation or a
total or partial dissolution of such Guarantor or in a reorganization,
bankruptcy, insolvency, receivership of or similar proceeding relating to such
Guarantor or its property:


 


(i)            the holders of
Designated Senior Indebtedness of such Guarantor shall be entitled to receive
payment in full of such Designated Senior Indebtedness in cash before Holders
of the Notes shall be entitled to receive any payment or distribution of any
kind or character with respect to any Obligations on, or relating to, the
Guarantees of the Notes; and


 


(ii)           until the Designated
Senior Indebtedness of such Guarantor is paid in full in cash, any payment or
distribution to which holders of the Guarantees of the Notes would be entitled
but for this Article XI of this Indenture shall be made to holders of
such Designated Senior Indebtedness as their interests may appear, except that
holders of the Guarantees of the Notes may receive Permitted Junior Securities.


 


SECTION 11.3       Default on Designated
Senior Indebtedness of a Guarantor.


 


No Guarantor shall make any payments on its
Guarantee of the Notes or purchase, redeem or otherwise retire any Notes
(collectively, “pay on the Guarantees of the Notes”) (except in the form
of Permitted Junior Securities (other than Disqualified Stock)) if either of
the following occurs (a “Guarantor Payment Default”);


 


(i)            any Obligation on any
Designated Senior Indebtedness of such Guarantor is not paid in full in cash
when due; or


 


(ii)           any other default on
any Designated Senior Indebtedness of such Guarantor occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its
terms;


 


unless, in
either case, the Guarantor Payment Default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness has
been paid in full in cash; provided, however, that the Guarantors
shall be entitled to pay on the Guarantees of the Notes, without regard to the
foregoing, if the Guarantors and the Trustee receive written notice approving
such payment from the Representatives of all Designated Senior Indebtedness with
respect to which the Guarantor Payment Default has occurred and is continuing.


 


During the continuance of any default (other
than a Guarantor Payment Default) (a “Non-Guarantor Payment Default”)
with respect to any Designated Senior Indebtedness of a Guarantor pursuant to
which the maturity thereof may be accelerated without further notice (except
such notice as may be required to effect such acceleration) or the expiration
of any applicable grace periods, such Guarantor shall not pay on its Guarantee
of the Notes (except in the form of Permitted Junior Securities (other than
Disqualified Stock)) for a period (a “Guarantee Payment Blockage Period”)
commencing upon the receipt by the Trustee (with a copy to the Company) of
written notice (a “Guarantee Blockage Notice”) of such Non-Guarantor
Payment Default from


 


115

















 


the Representative
of such Designated Senior Indebtedness specifying an election to effect a
Guarantee Payment Blockage Period and ending 179 days thereafter. The
Guarantee Payment Blockage Period shall end earlier if such Guarantee Payment
Blockage Period is terminated (1) by written notice to the Trustee and the
Company from the Person or Persons who gave such Guarantee Blockage Notice;
(2) because the Non-Guarantor Payment Default giving rise to such
Guarantee Blockage Notice is cured, waived or otherwise no longer continuing;
or (3) because such Designated Senior Indebtedness has been discharged or
repaid in full in cash.


 


Notwithstanding the provisions described in
the immediately preceding paragraph (but subject to the provisions contained in
the first sentence of this Section 11.3 and Section 11.2 hereof),
unless the holders of such Designated Senior Indebtedness or the Representative
of such Designated Senior Indebtedness shall have accelerated the maturity of
such Designated Senior Indebtedness or a Guarantor Payment Default shall have
occurred and be continuing, the Guarantors shall be entitled to resume paying
on the Guarantees of the Notes after the termination of such Guarantee Payment
Blockage Period. The Guarantees shall not be subject to more than one Guarantee
Payment Blockage Period in any consecutive 360-day period irrespective of the
number of Non-Guarantor Payment Defaults with respect to Designated Senior
Indebtedness during such period, provided, however, that in no
event shall the total number of days during which any Guarantee Payment
Blockage Period or Periods on a Guarantee is in effect exceed 179 days in the
aggregate during any consecutive 365-day period, and there must be at least 186
days during any consecutive 365-day period during which no Guarantee Payment
Blockage Period is in effect. Notwithstanding the foregoing, however, no
Non-Guarantor Payment Default that existed or was continuing on the date of
delivery of any Guarantee Blockage Notice with respect to any Designated Senior
Indebtedness and that was the basis for the initiation of such Guarantee
Blockage Notice shall be, or be made, the basis for a subsequent Guarantee
Blockage Notice by the Representative of such Designated Senior Indebtedness
unless such Non-Guarantor Payment Default has been waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants during the period after the
date of delivery of such initial Guarantee Blockage Notice, that, in either
case, would give rise to a Non-Guarantor Payment Default pursuant to any
provisions under which a Non-Guarantor Payment Default previously existed or
was continuing shall constitute a new Non-Guarantor Payment Default for this
purpose).


 


SECTION 11.4       Demand for Payment.


 


If payment of the Notes is accelerated
because of an Event of Default and a demand for payment is made on a Guarantor
pursuant to Article X hereof, the Company, such Guarantor or the Trustee
shall promptly notify the holders of the Designated Senior Indebtedness of such
Guarantor or the Representative of such Designated Senior Indebtedness of such
demand; provided that any failure to give such notice shall have no
effect whatsoever on the provisions of this Article XI. If any
Designated Senior Indebtedness of a Guarantor is outstanding, such Guarantor
may not pay on its Guarantee of the Notes until five Business Days after the
Representatives of all such Designated Senior Indebtedness receive notice of
such acceleration and, thereafter, may pay on its Guarantee of the Notes only
if this Indenture otherwise permits payment at that time.


 


116

















 


SECTION 11.5       When Distribution Must
Be Paid Over.


 


If a distribution is made to Holders that,
due to Article XI of this Indenture, should not have been made to them,
such Holders are required to hold it in trust for the holders of Designated
Senior Indebtedness of the Guarantors and pay it over to them as their interests
may appear.


 


SECTION 11.6       Subrogation.


 


After all Designated Senior Indebtedness of a
Guarantor is paid in full and until the Notes are paid in full in cash, holders
of the Guarantees shall be subrogated (equally and ratably with all other
Indebtedness ranking pari  passu with the Guarantees of the Notes)
to the rights of holders of such Designated Senior Indebtedness to receive
distributions applicable to such Designated Senior Indebtedness. A distribution
made under this Article XI to holders of such Designated Senior
Indebtedness that otherwise would have been made to holders of the Guarantees
is not, as between the relevant Guarantor and holders of the Guarantees, a payment
by such Guarantor on such Designated Senior Indebtedness.


 


SECTION 11.7       Relative Rights.


 


This Article XI defines the relative
rights of holders of the Guarantees and holders of Designated Senior
Indebtedness of a Guarantor. Nothing in this Indenture shall:


 


(i)            impair, as between
such Guarantor and holders of the Guarantees, the obligation of such Guarantor,
which is absolute and unconditional, to make payments under its Guarantee in
accordance with its terms;


 


(ii)           prevent the Trustee or
any holder of the Guarantees from exercising its available remedies upon a
default by such Guarantor under its obligations with respect to its Guarantee,
subject to the rights of holders of Designated Senior Indebtedness of such
Guarantor to receive payments or distributions otherwise payable to holders of
the Guarantees and such other rights of such holders of Designated Senior Indebtedness
as set forth herein; or


 


(iii)          affect the relative
rights of holders of the Guarantees and creditors of such Guarantor, other than
the rights of holders of the Guarantees in relation to holders of Designated
Senior Indebtedness.


 


SECTION 11.8       Subordination May Not Be
Impaired by a Guarantor.


 


No right of any holder of Designated Senior
Indebtedness of a Guarantor to enforce the subordination of the obligations of
such Guarantor under its Guarantee shall be impaired by any act or failure to
act by such Guarantor or by its failure to comply with this Indenture.


 


SECTION 11.9       Rights of Trustee and
Paying Agent.


 


Notwithstanding Article 11.3 hereof,
the Trustee or any Paying Agent may continue to make payments on the Notes and
shall not be charged with knowledge of the existence of facts


 


117

















 


that would
prohibit the making of any payments unless, not less than two Business Days
prior to the date of such payment, a Responsible Officer of the Trustee receives
notice satisfactory to him that payments may not be made under this Article
XI. A Guarantor, the
Registrar, the Paying Agent, a Representative or a holder of Designated Senior
Indebtedness of such Guarantor shall be entitled to give the notice; provided,
however, that, if an issue of Designated Senior Indebtedness of such
Guarantor has a Representative, only the Representative shall be entitled to
give the notice.


 


The Trustee in its individual or any other
capacity shall be entitled to hold Designated Senior Indebtedness of a Guarantor
with the same rights it would have if it were not Trustee. The Registrar and
the Paying Agent shall be entitled to do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XI with
respect to any Designated Senior Indebtedness of a Guarantor which may at any
time be held by it, to the same extent as any other holder of such Designated
Senior Indebtedness; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article XI
shall apply to claims of, or payments to, the Trustee under or pursuant to Section
7.7 hereof or any other Section of this Indenture.


 


SECTION 11.10     Distribution or Notice to
Representative.


 


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


 


SECTION 11.11     Not To Prevent Events of
Default or Limit Right To Demand Payment.


 


The failure of a Guarantor to make a payment
pursuant its Guarantee by reason of any provision in this Article XI
shall not be construed as preventing the occurrence of a default by such Guarantor
under its Guarantee. Nothing in this Article XI shall have any effect on
the right of the holders of the Guarantees or the Trustee to make a demand for
payment on a Guarantor pursuant to Article X hereof.


 


SECTION 11.12     Trust Moneys Not
Subordinated.


 


Notwithstanding anything contained herein to
the contrary, payments from money or the proceeds of Government Securities
held in trust by the Trustee for the payment of principal of and interest on
the Notes pursuant to Article VIII or Article IX hereof shall not
be subordinated to the prior payment of any Designated Senior Indebtedness of
any Guarantor or subject to the restrictions set forth in this Article XI,
and none of the holders of the Guarantees shall be obligated to pay over any
such amount to such Guarantor or any holder of Designated Senior Indebtedness
of such Guarantor or any other creditor of such Guarantor, provided that
the subordination provisions of this Article XI were not violated at the
time the applicable amounts were deposited in trust pursuant to Article VIII
or Article IX hereof, as the case may be.


 


SECTION 11.13     Trustee Entitled To Rely.


 


Upon any payment or distribution pursuant to
this Article XI, the Trustee and the holders of the Guarantees shall be
entitled to rely (a) upon any order or decree of a court of competent


 


118

















 


jurisdiction
in which any proceedings of the nature referred to in Section 11.2
hereof are pending, (b) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the holders of the Guarantees or (c) upon the Representatives of
Designated Senior Indebtedness of a Guarantor for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of such Designated Senior Indebtedness and other Indebtedness of such
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XI. In the event that the Trustee determines, in good faith, that evidence
is required with respect to the right of any Person as a holder of Designated
Senior Indebtedness of a Guarantor to participate in any payment or
distribution pursuant to this Article XI, the Trustee shall be entitled
to request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of such Designated Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article XI, and, if such evidence is not furnished, the
Trustee shall be entitled to defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.1 and 7.2 hereof shall be applicable to
all actions or omissions of actions by the Trustee pursuant to this Article
XI.


 


SECTION 11.14     Trustee To Effectuate
Subordination.


 


A Holder by its acceptance of a Note agrees
to be bound by this Article XI and authorizes and expressly directs the
Trustee, on his behalf, to take such action as may be necessary or appropriate
to effectuate the subordination between the holders of the Guarantees and the
holders of Designated Senior Indebtedness of a Guarantor as provided in this Article
XI and appoints the Trustee as attorney-in-fact for any and all such purposes.


 


SECTION 11.15     Trustee Not Fiduciary for
Holders of Designated Senior Indebtedness of Guarantors.


 


The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Designated Senior Indebtedness of a Guarantor
and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to holders of the Guarantees or such Guarantor or any other Person,
money or assets to which any holders of Designated Senior Indebtedness of such
Guarantor shall be entitled by virtue of this Article XI or otherwise.


 


SECTION 11.16     Reliance by Holders of
Designated Senior Designated Indebtedness of a Guarantor on Subordination
Provisions.


 


Each Holder by accepting a Note acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Designated Senior
Indebtedness of a Guarantor, whether such Designated Senior Indebtedness was
created or acquired before or after the issuance of the Notes, to acquire and
continue to hold, or to continue to hold, such Designated Senior Indebtedness
and such holder of such Designated Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Designated Senior
Indebtedness.


 


119

















 


Without in any way limiting the generality of
the foregoing paragraph, the holders of Designated Senior Indebtedness of a
Guarantor may, at any time and from time to time, without the consent of or notice
to the Trustee or the holders of the Guarantees, without incurring
responsibility to the Trustee or the holders of the Guarantees and without
impairing or releasing the subordination provided in this Article XI or the
obligations hereunder of the holders of the Guarantees to the holders of the
Designated Senior Indebtedness of such Guarantor, do any one or more of the
following:  (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Designated Senior
Indebtedness of such Guarantor, or otherwise amend or supplement in any manner
Designated Senior Indebtedness of such Guarantor, or any instrument evidencing
the same or any agreement under which Designated Senior Indebtedness of such
Guarantor is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Designated Senior
Indebtedness of such Guarantor; (iii) release any Person liable in any
manner for the payment or collection of Designated Senior Indebtedness of such
Guarantor; and (iv) exercise or refrain from exercising any rights against
such Guarantor and any other Person.


 


ARTICLE XII



MISCELLANEOUS


 


SECTION 12.1       Trust Indenture Act
Controls.


 


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


 


SECTION 12.2       Notices.


 


Any notice or communication by the Company,
any Guarantor or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing
next day delivery, to the others’ address:


 


If to the Company:


 


Nuveen Investments, Inc. 

333 West Wacker Drive

Chicago, Illinois 60606

Facsimile:  (312) 917-7700

Attention:  Chief Financial Officer


 


With a copy to:


 


Kirkland & Ellis LLP

200 E. Randolph Drive

Chicago, IL  60601

Facsimile:  (312) 861-2200

Attention:  Dennis M. Myers, P.C.


 


120

















 


If to the Trustee:


 


U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul MN 55107-1419

Facsimile:  651-495-8097

Attention:  Corporate Trust Services


 


The Company 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) shall be deemed to have been duly given:  at the time delivered by hand, if personally
delivered; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next Business Day delivery.


 


Any notice or communication to a Holder shall
be mailed by first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next Business Day delivery
to its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.


 


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, except in the case of notices or communications
given to the Trustee, which shall be effective only upon actual receipt.


 


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


 


SECTION 12.3       Communication by Holders
of Notes with Other Holders of Notes.


 


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


 


SECTION 12.4       Certificate and Opinion
as to Conditions Precedent.


 


Upon any request or application by the
Company to the Trustee to take any action under this Indenture (other than the
initial issuance of the Notes), the Company shall furnish to the Trustee upon
request:


 


(a)           an
Officers’ Certificate (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of the signers, all conditions precedent
provided for in this Indenture relating to the proposed action have been
satisfied; and


 


121

















 


(b)           an
Opinion of Counsel (which shall include the statements set forth in Section 12.5
hereof) stating that, in the opinion of such counsel, all such conditions precedent
have been satisfied.


 


SECTION 12.5       Statements Required in
Certificate or Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with
the provisions of TIA § 314(e) and shall include:


 


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


 


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


 


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


 


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


 


SECTION 12.6       Rules by Trustee and
Agents.


 


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


 


SECTION 12.7       No Personal Liability of
Directors, Officers, Employees and Stockholders.


 


No director, officer, employee, incorporator,
stockholder, unitholder or member of the Company, any of its Subsidiaries or
any of its direct or indirect parent companies, as such (and not as Guarantor),
will have any liability for any obligations of the Company or any Guarantor under
the Notes, this Indenture, the Guarantees, or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each holder of
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. The waiver
may not be effective to waive liabilities under the federal securities laws,
and it is the view of the Commission that such waiver is against public policy.


 


SECTION 12.8       Governing Law.


 


THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF, SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES.


 


122

















 


SECTION 12.9       No Adverse Interpretation
of Other Agreements.


 


This Indenture may not be used to interpret
any other indenture, loan or debt agreement of the Company or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.


 


SECTION 12.10     Successors.


 


All agreements of the Company and the
Guarantors in this Indenture and the Notes and the Guarantees, as applicable,
shall bind their respective successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successors and assigns.


 


SECTION 12.11     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 12.12     Counterpart Originals.


 


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


 


SECTION 12.13     Table of Contents,
Headings, Etc. 


 


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


 


SECTION 12.14     Acts of Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by 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 Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section 12.14.


 


(b)           The fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such officer the
execution thereof. Where such execution is by a signer acting in a capacity
other than such signer’s


 


123

















 


individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer’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 ownership of Notes shall be proved by
the Holder list maintained under Section 2.5 hereunder.


 


(d)           Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Note shall
bind every future Holder of the same Note and the holder of every Note issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Note.


 


(e)           If the Company shall solicit from the
Holders any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of outstanding Notes have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the outstanding Notes shall
be computed as of such record date;  provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


SECTION 12.15     Effectiveness of Merger.


 


Upon the consummation of the Merger, Nuveen
Investments, Inc. shall succeed to all of the rights and obligations of Windy
City Acquisition Corp. under this Indenture, without any further action by any
person and the Guarantees of the Subsidiary Guarantors shall be effective.


 


[Signatures on following page]


 


124

















 


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


 


	
  

  	
  WINDY CITY
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Timothy M. Hurd

  
	
   

  	
   

  	
  Name:  Timothy
  M. Hurd

  
	
   

  	
   

  	
  Title:  President

  



 


S-1

















 


	
  

  	
  NUVEEN
  INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John L. MacCarthy

  
	
   

  	
   

  	
  Name:  John
  L. MacCarthy

  
	
   

  	
   

  	
  Title:  Secretary

  
	
   

  	
   

  
	
   

  	
  WINDY
  CITY INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Timothy M. Hurd

  
	
   

  	
   

  	
  Name:  Timothy M. Hurd

  
	
   

  	
   

  	
  Title:  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NUVEEN HYDEPARK GROUP, LLC

  
	
   

  	
  NUVEEN ASSET MANAGEMENT

  
	
   

  	
  NUVEEN INVESTMENTS
  ADVISERS INC.

  
	
   

  	
  NUVEEN INVESTMENTS
  HOLDINGS, INC.

  
	
   

  	
  NUVEEN INVESTMENTS
  INSTITUTIONAL

  SERVICES GROUP LLC

  
	
   

  	
  NWQ HOLDINGS, LLC

  
	
   

  	
  NWQ INVESTMENT MANAGEMENT
  COMPANY,

  LLC

  
	
   

  	
  RICHARDS & TIERNEY,
  INC.

  
	
   

  	
  RITTENHOUSE ASSET
  MANAGEMENT, INC.

  
	
   

  	
  SANTA BARBARA ASSET
  MANAGEMENT, LLC

  
	
   

  	
  SYMPHONY ASSET MANAGEMENT
  LLC

  
	
   

  	
  TRADEWINDS GLOBAL
  INVESTORS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John L. MacCarthy

  
	
   

  	
   

  	
  Name:  John
  L. MacCarthy

  
	
   

  	
   

  	
  Title:  Secretary

  



 


S-2

















 


	
  

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Raymond S. Haverstock

  
	
   

  	
   

  	
  Name:  Raymond
  S. Haverstock

  
	
   

  	
   

  	
  Title:  Vice
  President

  



 


S-3
















 


EXHIBIT A


 


FORM OF NOTE

(Face of 101/2 % Senior Note due 2015)


 


[Global Note Legend]


 


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


 


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OR
PURCHASES OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.


 


[Restricted Notes Legend]


 


THE NOTE EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE ‘‘SECURITIES ACT’’)
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) 


 


A-1

















 


IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES.


 


[Regulation S Global Note Legend]


 


THIS GLOBAL
NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE INDENTURE REFERRED TO BELOW.


 


NO BENEFICIAL
OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.


 


A-2

















 


WINDY CITY ACQUISITION CORP.

to be merged with and into

Nuveen Investments, Inc.



101/2% Senior Notes due 2015


 


	
  No.

  	
   

  	
  $

  
	
   

  	
   

  	
  CUSIP NO.

  
	
   

  	
   

  	
  ISIN NO.

  



 


Windy City Acquisition Corp. (the “Company,”
which includes any successor entity) promises to pay to Cede & Co. or registered
assigns, the principal sum of
            ($       )
on November 15, 2015. On the Issue Date, the Company will be merged with
and into Nuveen Investments, Inc., and thereafter Nuveen Investments, Inc. will
assume the obligations of the Company under this Note. This Note shall not be
effective against Nuveen Investment, Inc. until the consummation of the Merger.


 


Interest Payment Dates:  May 15
and November 15, beginning May 15, 2008


Record Dates:  May 1 and November
1


 


Reference is made to further provisions of
this Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as set forth at this place.


 


Unless the certificate of authentication
hereon has been executed by the Trustee referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefits under the
Indenture referred to on the reverse hereof or be valid or obligatory for any
purpose.


 


A-1

















 


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


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WINDY CITY
  ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  NUVEEN
  INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2

















 


This is one of the Notes referred to in the
within-mentioned Indenture:


 


Dated:


 


U.S. BANK NATIONAL ASSOCIATION, as Trustee


 


 


	
  By:

  	
   

  	
   

  



 


A-3

















 


(Back of 101/2 % Senior Note)

101/2 % Senior Notes due 2015


 


Capitalized terms used herein shall have the
meanings assigned to them in the Indenture referred to below unless otherwise
indicated.


 


(1)           Interest. Windy City Acquisition
Corp., a Delaware corporation (the “Company,” which includes any
successor entity) promises to pay interest on the principal amount of this 101⁄2%
Senior Note due 2015 (a “Note”) as follows:


 


Interest on the Notes will accrue at the rate
of 101⁄2% per annum and be payable in cash.


 


The Company will pay interest in United
States dollars (except as otherwise provided herein) semiannually in arrears on
May 15 and November 15, commencing on May 15, 2008 or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest Payment
Date”). Interest on the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from
November 13, 2007;  provided
that if there is no existing Default or Event of Default in the payment of
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date (but after
November 13, 2007), interest shall accrue from such next succeeding
Interest Payment Date, except in the case of the original issuance of Notes, in
which case interest shall accrue from the date of authentication. The Company
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest, if
any (without regard to any applicable grace period) to the extent lawful. Interest
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months. The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.


 


(2)           Method of Payment.


 


The Company will pay cash interest on the
Notes on the applicable Interest Payment Date to the Persons who are registered
Holders of Notes at the close of business on the May 1 and November 1
preceding the Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes shall be payable
as to principal, premium, if any, and interest and Additional Interest, if any,
at the office or agency of the Company maintained for such purpose within the
City and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders;  provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of, premium, if any, and interest on, all Global
Notes and all other Notes the Holders of which shall have provided, at least
three Business Days prior to the applicable payment date, written wire transfer
instructions to the Company and the Paying Agent. Such payment shall be in such
coin or currency of the 


 


A-4

















 


United States of America as at the time of
payment is legal tender for payment of public and private debts.


 


Any payments of principal of this Note prior
to Stated Maturity shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. The amount due and payable at
the maturity of this Note shall be payable only upon presentation and surrender
of this Note at an office of the Trustee or the Trustee’s agent appointed for
such purposes.


 


(3)           Paying Agent and Registrar. Initially,
the Trustee shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its Restricted Subsidiaries may act in any such capacity, except that for the
purposes of Articles Three and Eight and Sections 4.10 and 4.14 of the
Indenture, neither the Company nor any Affiliate of the Company shall act as
Paying Agent.


 


(4)           Indenture. The Company issued the
Notes under an Indenture, dated as of November 13, 2007 (the “Indenture”), by and among Windy
City Acquisition Corp., Nuveen Investments, Inc., the Guarantors, the Trustee
and the Paying Agent and Registrar. The terms of the Notes include those stated
in the Indenture and those made a part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb)
(the “TIA”). To the
extent the provisions of this Note are inconsistent with the provisions of the
Indenture, the Indenture shall govern. The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes issued on the Issue Date are senior unsecured obligations of
the Company limited to $785,000,000 in aggregate principal amount, plus
amounts, if any, sufficient to pay premium and interest on outstanding Notes as
set forth in Paragraph 2 hereof. The Indenture permits the issuance of Additional
Notes subject to compliance with certain conditions.


 


The payment of principal and interest on the
Notes is unconditionally guaranteed by the Guarantors. Such guarantees are
subordinated to Designated Senior Indebtedness of the Guarantors, as set forth
in the Indenture.


 


(5)           Optional Redemption.


 


(a)           The Notes may be redeemed in whole or in
part, at any time prior to November 15, 2011, at the option of the Company
upon not less than 30 nor more than 60 days’ prior notice mailed by
first-class mail to each Holder’s registered address, at a redemption price
equal to 100% of the principal amount of the Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest and Additional Interest, if any,
to, the applicable redemption date (subject to the right of Holders on the
relevant record date to receive interest due on the relevant interest payment
date).


 


(b)           The Notes are subject to redemption, at the
option of the Company, in whole or in part, at any time on or after November
15, 2011, upon not less than 30 nor more than 60 days’ notice, at the following
Redemption Prices (expressed as a percentage of the principal amount to be
redeemed) set forth below, plus accrued and unpaid interest and Additional
Interest, if any, to, but not including, the redemption date (subject to the
right of Holders of record on the relevant 


 


A-5

















 


regular record date to receive interest due
on an interest payment date that is on or prior to the redemption date) if
redeemed during the twelve-month period beginning on November 15 of the years
indicated below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2011

  	
   

  	
  105.250

  	
  %

  
	
  2012

  	
   

  	
  102.625

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(c)           In addition to the optional redemption of
the Notes in accordance with the provisions of the preceding paragraph, prior
to November 15, 2010, the Company may on one or more occasions, with the net
cash proceeds of one or more Equity Offerings, redeem up to 35% of the
aggregate principal amount of the outstanding Notes at a Redemption Price of
110.5% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the date of redemption (provided that if the Equity Offering is an offering by
Parent or any of its direct or indirect parent companies, a portion of the net
cash proceeds thereof equal to the amount required to redeem any such Notes is
contributed to the equity capital of the Company);  provided
that at least 65% of the aggregate principal amount of Notes originally issued
on the Issue Date remains outstanding immediately after the occurrence of any
such redemption (excluding Notes held by Parent and its Affiliates) and that
any such redemption occurs within 90 days following the closing of any
such Equity Offering.


 


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


 


(7)           Repurchase at Option of Holder.


 


(a)           Upon the occurrence of a Change of Control,
each Holder will have the right to require the Company to repurchase all or any
part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of
such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Additional Interest, if any, thereon to
the date of purchase. Within 30 days following any Change of Control, the
Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control setting forth the procedures
governing the Change of Control Offer required by the Indenture.


 


(b)           Upon the occurrence of certain Asset Sales,
the Company may be required to offer to purchase Notes.


 


(c)           Holders of the Notes that are the subject of
an offer to purchase will receive notice of an Offer to Purchase pursuant to an
Asset Sale or a Change of Control from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing the form
titled “Option of Holder to Elect Purchase” appearing below.


 


(8)           Notice of Redemption. Notice of
redemption shall be mailed by first-class mail at least 30 days but not
more than 60 days before the redemption date to each Holder whose Notes 


 


A-6

















 


are to be redeemed at its registered address. Notes in denominations
larger than $2,000 may be redeemed in part but only in minimum denominations of
$2,000 and integral multiples of $1,000 thereof, unless all of the Notes held
by a Holder are to be redeemed. On and after the redemption date, interest will
cease to accrue on the Notes or portions hereof called for redemption.


 


(9)           Successor Entity. When a successor
entity assumes, in accordance with the Indenture, all of the obligations of its
predecessor under the Notes and Indenture, and immediately before and after
such transaction, no Event of Default Exists and certain other conditions are
satisfied, the predecessor entity will be released from those obligations.


 


(10)         Denominations, Transfer, Exchange. The Notes
are in registered form without coupons in minimum denominations of $2,000 and
integral multiples of $1,000 thereof. The transfer of the Notes may be
registered and the Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion
of a Note selected for redemption, except for the unredeemed portion of any
Note being redeemed in part. 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 or during the period between a record date and the corresponding
Interest Payment Date.


 


(11)         Persons Deemed Owners. The registered
holder of a Note may be treated as its owner for all purposes.


 


(12)         Amendment, Supplement and Waiver. Subject
to certain exceptions, the Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Notes, and any existing Default
or Event of Default or compliance with any provision of the Indenture or the
Notes may be waived with the consent of the Holders of a majority in aggregate
principal amount of the outstanding Notes. Without the consent of any Holders,
the Company, the Guarantors and the Trustee, at any time and from time to time,
may amend or supplement the Indenture to, among other things, cure any
ambiguity, mistake, defect or inconsistency; to provide for uncertificated
Notes in addition to or in place of certificated Notes; to provide for the
assumption by a successor company of the Company’s or such Guarantor’s obligations
under the Indenture, the Notes or any Guarantee in accordance with the
provisions of the Indenture; or to make any change that would provide any
additional rights or benefits to the Holders of Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder.


 


(13)         Defaults and Remedies. If a Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes generally may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of a Default arising from certain events of bankruptcy or insolvency as
set forth in the Indenture, with respect to the Company, all outstanding Notes
will become 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. Subject to certain limitations, Holders of a majority in principal 


 


A-7

















 


amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default and its
consequences under the Indenture except a continuing Default in the payment of
interest on, or the principal of, or the premium on, the Notes.


 


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


 


(15)         Restrictive Covenants. The Indenture
contains certain covenants that, among other things, limit the ability of the
Company and its Restricted Subsidiaries to make restricted payments, to incur indebtedness,
to create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Company, to consolidate, merge or
sell all or substantially all of its assets or to engage in transactions with
affiliates. The limitations are subject to a number of important qualifications
and exceptions. The Company must annually report to the Trustee on compliance
with such limitations and other provisions in the Indenture.


 


(16)         No Recourse Against Others. No director,
officer, employee, stockholder, unitholder, member, general or limited partner
or incorporator, past, present or future, of the Company, any of its
Subsidiaries or any of its direct or indirect parent companies as such or in
such capacity, shall have any liability for any obligations of the Company or
any Guarantor under the Notes, any Guarantee, the Indenture or any claim based
on, in respect of or by reason of, such obligation or their creation, by reason
of his, her or its status as such director, officer, employee, stockholder,
unitholder, member, general or limited partner or incorporator.


 


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


 


(18)         Abbreviations. Customary abbreviations
may be used in the name of a Holder or an assignee, such as:  TEN COM (= tenants in common), TENENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


(19)         CUSIP Numbers. Pursuant to a
recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on the Notes and the Trustee may use CUSIP numbers in notices of redemption as
a convenience to the Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


(20)         Registration Rights. The Company has
entered into a registration rights agreement in connection with the issuance of
the Initial Notes and may enter into similar agreements in connection with any
issuance of Additional Notes.


 


(21)         Governing Law. This Note will be
governed by, and construed in accordance with, the laws of the State of New
York.


 


A-8

















 


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


 


Nuveen Investments, Inc. 

333 West Wacker Drive

Chicago, Illinois 60606

Facsimile:  (312) 917-7700

Attention:  Chief Financial Officer


 


A-9

















 


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


 


 


to transfer this Note on the books of the Company. The agent may
substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name

  appears on the face of this

  Note)

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  (Signature must be guaranteed by a participant in a recognized
  signature

  guarantee medallion program)

  
							



 


A-10

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note
purchased by the Company pursuant to Section 4.10 or 4.14 of
the Indenture, check the box below:


 


[  ] Section 4.10     [  ] Section 4.14


 


If you want to elect to have only part of the
Note purchased by the Company pursuant to Section 4.10 or Section 4.14
of the Indenture, state the amount you elect to have purchased:  $


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name

  appears on the Note)

  
	
   

  
	
  Tax
  Identification No.:

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  (Signature must be guaranteed by a participant in a recognized
  signature 

  guarantee medallion program)

  
							



 


A-11

















 


CERTIFICATE TO BE DELIVERED UPON

EXCHANGE OF TRANSFER RESTRICTED NOTES


 


Nuveen Investments, Inc. 

333 West Wacker Drive

Chicago, Illinois 60606

Facsimile:  (312) 917-7700

Attention:  Chief Financial Officer


 


U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul MN 55107-1419

Facsimile:  651-495-8097

Attention:  Corporate Trust Services


 


Re: 
CUSIP #


 


Reference is hereby made to that certain
Indenture dated November 13, 2007 (the “Indenture”) by and among
Windy City Acquisition Corp., a Delaware corporation, that shall be merged with
and into Nuveen Investments, Inc., a Delaware corporation as the surviving corporation
(the “Company”), the
Guarantors party thereto and U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings set forth
in the Indenture.


 


This certificate relates to
$[                  ]
principal amount of Notes held in (check applicable space)             
book-entry or             
definitive form by the undersigned.


 


The undersigned                       
(transferor) (check one box below):


 


o            hereby requests the Registrar to deliver in
exchange for its beneficial interest in the Global Note held by the Depositary
a Note or Notes in definitive, registered form of authorized denominations and
an aggregate principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above), in accordance with Section 2.6
of the Indenture;


o            hereby requests the Trustee to exchange a
Note or Notes to                     
(transferee).


 


In connection with any transfer of any of the
Notes evidenced by this certificate occurring prior to the expiration of the
periods referred to in Rule 144(k) under the Securities Act of 1933, as
amended, the undersigned confirms that such Notes are being transferred in accordance
with its terms:


 


CHECK ONE BOX BELOW:


 


(1)           o            pursuant to an
effective registration statement under the Securities Act, or


 


(2)           o            pursuant to the
exemption from registration provided by Rule 144 under the Securities Act, or


 


A-12

















 


 (3)          o            inside the United
States to a “qualified institutional buyer” (as defined in Rule 144A under
the Securities Act of 1933, as amended) that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A under the Securities
Act of 1933, as amended, in each case pursuant to and in compliance with
Rule 144A thereunder; or


 


(4)           o            outside the United
States in an offshore transaction within the meaning of Regulation S under
the Securities Act of 1933, as amended, in compliance with Rule 904
thereunder.


 


Unless one of the boxes is checked, the
Registrar will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered holder thereof.


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  (Signature must be guaranteed by a participant in a recognized
  signature 

  guarantee medallion program)

  
				



 


TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS
CHECKED.


 


The undersigned represents and warrants that
it is purchasing this Note for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account is a “qualified
institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”), and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.


 


	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  NOTICE: To be executed by an executive 

  
	
   

  	
  officer

  
				



 


A-13

















 


SCHEDULE OF EXCHANGES OF NOTES


 


The following exchanges of a part of this
Global Note for other Notes have been made: 


 




	
  Date of Exchange

  	
   

  	
  Amount of

  Decrease in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Principal

  Amount of this

  Global Note

  Following such

  Decrease (or

  Increase)

  	
   

  	
  Signature of

  Authorized

  Officer of

  Trustee of Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


A-14

















 


EXHIBIT B


 


FORM OF NOTATION OF GUARANTEE


 


The Guarantors listed below (hereinafter
referred to as the “Guarantors,” which term includes any successors or
assigns under that certain Indenture, dated as of November 13, 2007 (as
amended and supplemented from time to time, the “Indenture”), by and
among Windy City Acquisition Corp., a Delaware corporation, that shall be
merged with and into Nuveen Investments, Inc., a Delaware corporation, as the
surviving corporation (the “Company”),
the Guarantors party thereto, the Trustee and the Registrar and Paying Agent,
have guaranteed the Notes and the obligations of the Company under the
Indenture, which include (i) the due and punctual payment of the principal
of, premium, if any, and interest on the 101⁄2 % Senior Notes due 2015 (the “Notes”)
of the Company, whether at stated maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal and premium, if
any, and (to the extent permitted by law) interest on any interest, if any, on
the Notes, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms set
forth in Article X of the Indenture, and (ii) in case of any extension
of time of payment or renewal of any Notes or any such other obligations, 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.


 


The obligations of each Guarantor to the
Holders and to the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article X of the Indenture and reference is
hereby made to such Indenture for the precise terms of this Guarantee.


 


No stockholder, employee, officer, director,
unitholder, member or incorporator, as such, past, present or future of each
Guarantor shall have any liability under this Guarantee by reason of his or its
status as such stockholder, employee, officer, director, unitholder, member or
incorporator.


 


This is a continuing Guarantee and shall
remain in full force and effect and shall be binding upon each Guarantor and
its successors and assigns until full and final payment of all of the Company’s
obligations under the Notes and Indenture or until released in accordance with
the Indenture 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 is a
Guarantee of payment and not of collection.


 


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. This
Guarantee, other than with respect to Windy City Investments, Inc., shall not
be effective against the Guarantors until the consummation of the Merger (as
defined in the Indenture). The obligations of each Guarantor under its
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.


 


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This Guarantee is subordinated to Designated
Senior Indebtedness as set forth in Article XI of the Indenture.


 


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


 


Capitalized terms used herein have the same
meanings given in the Indenture unless otherwise indicated.


 


	
  Dated as of 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WINDY
  CITY INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NUVEEN
  HYDEPARK GROUP, LLC

  
	
   

  	
  NUVEEN
  ASSET MANAGEMENT

  
	
   

  	
  NUVEEN
  INVESTMENTS ADVISERS INC.

  
	
   

  	
  NUVEEN
  INVESTMENTS HOLDINGS, INC.

  
	
   

  	
  NUVEEN INVESTMENTS
  INSTITUTIONAL 

  SERVICES GROUP LLC

  
	
   

  	
  NWQ
  HOLDINGS, LLC

  
	
   

  	
  NWQ INVESTMENT MANAGEMENT
  COMPANY, 

  LLC

  
	
   

  	
  RICHARDS
  & TIERNEY, INC.

  
	
   

  	
  RITTENHOUSE
  ASSET MANAGEMENT, INC.

  
	
   

  	
  SANTA
  BARBARA ASSET MANAGEMENT, LLC

  
	
   

  	
  SYMPHONY
  ASSET MANAGEMENT LLC

  
	
   

  	
  TRADEWINDS
  GLOBAL INVESTORS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-3

















 


EXHIBIT C


 


[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]


 


Nuveen
Investments, Inc. 

333 West Wacker Drive

Chicago, Illinois 60606

Facsimile:  (312) 917-7700

Attention:  Chief Financial Officer


 


U.S. Bank National Association


60 Livingston Avenue, EP-MN-WS3C


St. Paul MN 55107-1419


Facsimile:  651-495-8097


Attention:  Corporate Trust
Services


 


Re: 
Nuveen Investments, Inc. (the “Company”) 101⁄2 % Senior Notes due
2015 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our
proposed sale of
$[                 ]
aggregate principal amount at maturity of the Notes, we hereby certify that
such transfer is being effected pursuant to and in accordance with
Rule 144A (“Rule 144A”) under the United States Securities Act
of 1933, as amended (the “Securities
Act”), and, accordingly, we hereby further certify that the Notes
are being transferred to a person that we reasonably believe is purchasing the
Notes 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 Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.


 


You and the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Name of
  Transferor]

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signature

  
					



 


C-1

















 


EXHIBIT D


 


[FORM OF CERTIFICATE TO BE DELIVERED

IN CONNECTION WITH TRANSFERS

PURSUANT TO REGULATION S]


 


Nuveen Investments Inc.

333 West Wacker Drive 

Chicago, Illinois  60606

Facsimile:  (312) 917-7700

Attention:  Chief Financial Officer


 


U.S. Bank National Association

60 Livingston Avenue, EP-MN-WS3C

St. Paul MN 55107-1419

Facsimile:  651-495-8097

Attention:  Corporate Trust Services


 


Re: 
Nuveen Investments, Inc. (the “Company”) 101⁄2 % Senior Notes due
2015 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of
$[              ]
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:


 


(1)           the offer of the Notes
was not made to a person in the United States;


 


(2)           either (a) at the
time the buy order was originated, the transferee was outside the United States
or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated off-shore securities
market and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;


 


(3)           no directed selling
efforts have been made in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
and


 


(4)           the transaction is not
part of a plan or scheme to evade the registration requirements of the Securities
Act.


 


In addition, if the sale is made during a
restricted period and the provisions of Rule 903(b) or Rule 904(b) of
Regulation S are applicable thereto, we confirm that such sale has 


 


D-1

















 


been made in accordance with the applicable
provisions of Rule 903(b) or Rule 904(b), as the case may be.


 


The Company and you are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Name of
  Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signature

  
					



 


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