Exhibit 10.13


 


EXECUTION
COPY


 




 





HSN, INC.

as the Company


 


11.25% SENIOR NOTES DUE 2016


 






 


INDENTURE


 


Dated as of July 28, 2008


 






 


THE BANK OF NEW YORK MELLON


 


as Trustee




 





 

















 


CROSS-REFERENCE TABLE


 




	
  TIA

  	
   

  	
  Indenture

  
	
  Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  303

  	
   

  	
  1.03

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.07

  
	
  (c)

  	
   

  	
  7.06; 11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03(a); 11.05

  
	
  (4)

  	
   

  	
  4.04; 11.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  11.04; 11.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01(b); 7.02

  
	
  (b)

  	
   

  	
  7.05; 11.02

  
	
  (c)

  	
   

  	
  7.01(a)

  
	
  (d)

  	
   

  	
  7.01(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.13

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  11.01

  
	
  (c)

  	
   

  	
  11.01

  






 






N.A.
means Not Applicable.


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


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  
	
   

  
	
  SECTION 1.01.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.02.

  	
   

  	
  Other Definitions

  	
   

  	
  27

  
	
  SECTION 1.03.

  	
   

  	
  Incorporation by Reference of Trust Indenture Act

  	
   

  	
  28

  
	
  SECTION 1.04.

  	
   

  	
  Rules of Construction

  	
   

  	
  28

  
	
  SECTION 1.05.

  	
   

  	
  Acts of Holders; Record Dates

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
   

  	
  Form and Dating

  	
   

  	
  29

  
	
  SECTION 2.02.

  	
   

  	
  Form of Execution and Authentication

  	
   

  	
  32

  
	
  SECTION 2.03.

  	
   

  	
  Registrar and Paying Agent

  	
   

  	
  33

  
	
  SECTION 2.04.

  	
   

  	
  Paying Agent To Hold Money in Trust

  	
   

  	
  33

  
	
  SECTION 2.05.

  	
   

  	
  Lists of Holders of the Notes

  	
   

  	
  34

  
	
  SECTION 2.06.

  	
   

  	
  Transfer and Exchange

  	
   

  	
  34

  
	
  SECTION 2.07.

  	
   

  	
  Replacement Notes

  	
   

  	
  46

  
	
  SECTION 2.08.

  	
   

  	
  Outstanding Notes

  	
   

  	
  46

  
	
  SECTION 2.09.

  	
   

  	
  Treasury Notes

  	
   

  	
  46

  
	
  SECTION 2.10.

  	
   

  	
  Temporary Notes

  	
   

  	
  47

  
	
  SECTION 2.11.

  	
   

  	
  Cancellation

  	
   

  	
  47

  
	
  SECTION 2.12.

  	
   

  	
  Defaulted Interest

  	
   

  	
  47

  
	
  SECTION 2.13.

  	
   

  	
  Record Date

  	
   

  	
  47

  
	
  SECTION 2.14.

  	
   

  	
  CUSIP Number

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
   

  	
  Notices to Trustee

  	
   

  	
  48

  
	
  SECTION 3.02.

  	
   

  	
  Selection of Notes To Be Redeemed

  	
   

  	
  48

  
	
  SECTION 3.03.

  	
   

  	
  Notice of Redemption

  	
   

  	
  48

  
	
  SECTION 3.04.

  	
   

  	
  Effect of Notice of Redemption

  	
   

  	
  49

  
	
  SECTION 3.05.

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  49

  
	
  SECTION 3.06.

  	
   

  	
  Notes Redeemed in Part

  	
   

  	
  50

  
	
  SECTION 3.07.

  	
   

  	
  Optional Redemption

  	
   

  	
  50

  
	
  SECTION 3.08.

  	
   

  	
  Excess Proceeds Offer

  	
   

  	
  51

  



 


i

















 


	
  SECTION 3.09.

  	
   

  	
  Special Mandatory Redemption

  	
   

  	
  53

  
	
  SECTION 3.10.

  	
   

  	
  Notice of Special Mandatory Redemption

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
   

  	
  Payment of Notes

  	
   

  	
  54

  
	
  SECTION 4.02.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  54

  
	
  SECTION 4.03.

  	
   

  	
  Reports

  	
   

  	
  55

  
	
  SECTION 4.04.

  	
   

  	
  Compliance Certificate

  	
   

  	
  55

  
	
  SECTION 4.05.

  	
   

  	
  Taxes

  	
   

  	
  56

  
	
  SECTION 4.06.

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  	
  56

  
	
  SECTION 4.07.

  	
   

  	
  Limitation on Restricted Payments

  	
   

  	
  56

  
	
  SECTION 4.08.

  	
   

  	
  Limitation on Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
   

  	
  59

  
	
  SECTION 4.09.

  	
   

  	
  Limitation on Incurrence of Indebtedness

  	
   

  	
  61

  
	
  SECTION 4.10.

  	
   

  	
  Limitation on Asset Sales

  	
   

  	
  65

  
	
  SECTION 4.11.

  	
   

  	
  Limitation on Transactions with Affiliates

  	
   

  	
  66

  
	
  SECTION 4.12.

  	
   

  	
  Limitation on Liens

  	
   

  	
  68

  
	
  SECTION 4.13.

  	
   

  	
  Additional Subsidiary Guarantees

  	
   

  	
  68

  
	
  SECTION 4.14.

  	
   

  	
  Organizational Existence

  	
   

  	
  69

  
	
  SECTION 4.15.

  	
   

  	
  Change of Control

  	
   

  	
  69

  
	
  SECTION 4.16.

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  70

  
	
  SECTION 4.17.

  	
   

  	
  [Intentionally Omitted]

  	
   

  	
  70

  
	
  SECTION 4.18.

  	
   

  	
  Payments for Consent

  	
   

  	
  70

  
	
  SECTION 4.19.

  	
   

  	
  Suspension of Covenants

  	
   

  	
  70

  
	
  SECTION 4.20.

  	
   

  	
  Escrow of Proceeds; Release

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
   

  	
  Merger, Consolidation or Sale of Assets

  	
   

  	
  72

  
	
  SECTION 5.02.

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
   

  	
  Events of Default

  	
   

  	
  74

  
	
  SECTION 6.02.

  	
   

  	
  Acceleration

  	
   

  	
  75

  
	
  SECTION 6.03.

  	
   

  	
  Other Remedies

  	
   

  	
  76

  
	
  SECTION 6.04.

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  76

  
	
  SECTION 6.05.

  	
   

  	
  Control by Majority

  	
   

  	
  76

  



 


ii

















 


	
  SECTION 6.06.

  	
   

  	
  Limitation on Suits

  	
   

  	
  77

  
	
  SECTION 6.07.

  	
   

  	
  Rights of Holders of Notes To Receive Payment

  	
   

  	
  77

  
	
  SECTION 6.08.

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  77

  
	
  SECTION 6.09.

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  78

  
	
  SECTION 6.10.

  	
   

  	
  Priorities

  	
   

  	
  78

  
	
  SECTION 6.11.

  	
   

  	
  Undertaking for Costs

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
   

  	
  Duties of Trustee

  	
   

  	
  79

  
	
  SECTION 7.02.

  	
   

  	
  Rights of Trustee

  	
   

  	
  80

  
	
  SECTION 7.03.

  	
   

  	
  Individual Rights of Trustee

  	
   

  	
  81

  
	
  SECTION 7.04.

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  81

  
	
  SECTION 7.05.

  	
   

  	
  Notice of Defaults

  	
   

  	
  82

  
	
  SECTION 7.06.

  	
   

  	
  Reports by Trustee to Holders of the Notes

  	
   

  	
  82

  
	
  SECTION 7.07.

  	
   

  	
  Compensation and Indemnity

  	
   

  	
  82

  
	
  SECTION 7.08.

  	
   

  	
  Replacement of Trustee

  	
   

  	
  83

  
	
  SECTION 7.09.

  	
   

  	
  Successor Trustee by Merger, Etc.

  	
   

  	
  84

  
	
  SECTION 7.10.

  	
   

  	
  Eligibility; Disqualification

  	
   

  	
  84

  
	
  SECTION 7.11.

  	
   

  	
  Preferential Collection of Claims Against the Issuer

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DISCHARGE OF INDENTURE;
  DEFEASANCE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
   

  	
  Termination of the Issuer’s Obligations

  	
   

  	
  85

  
	
  SECTION 8.02.

  	
   

  	
  Option To Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  86

  
	
  SECTION 8.03.

  	
   

  	
  Legal Defeasance and Covenant Discharge

  	
   

  	
  86

  
	
  SECTION 8.04.

  	
   

  	
  Covenant Defeasance

  	
   

  	
  86

  
	
  SECTION 8.05.

  	
   

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  87

  
	
  SECTION 8.06.

  	
   

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

  	
   

  	
  88

  
	
  SECTION 8.07.

  	
   

  	
  Repayment to the Issuer

  	
   

  	
  88

  
	
  SECTION 8.08.

  	
   

  	
  Reinstatement

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND
  WAIVER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
   

  	
  Without Consent of Holders of Notes

  	
   

  	
  89

  
	
  SECTION 9.02.

  	
   

  	
  With Consent of Holders of Notes

  	
   

  	
  90

  
	
  SECTION 9.03.

  	
   

  	
  Compliance with Trust Indenture Act

  	
   

  	
  92

  
	
  SECTION 9.04.

  	
   

  	
  Revocation and Effect of Consents

  	
   

  	
  92

  



 


iii

















 


	
  SECTION 9.05.

  	
   

  	
  Notation on or Exchange of Notes

  	
   

  	
  92

  
	
  SECTION 9.06.

  	
   

  	
  Trustee To Sign Amendments, Etc.

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
   

  	
  Guarantee

  	
   

  	
  93

  
	
  SECTION 10.02.

  	
   

  	
  Execution and Delivery of Guarantees

  	
   

  	
  94

  
	
  SECTION 10.03.

  	
   

  	
  Merger, Consolidation or Sale of Assets of Guarantors

  	
   

  	
  95

  
	
  SECTION 10.04.

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  95

  
	
  SECTION 10.05.

  	
   

  	
  Releases from Guarantees

  	
   

  	
  96

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
   

  	
  Trust Indenture Act Controls

  	
   

  	
  96

  
	
  SECTION 11.02.

  	
   

  	
  Notices

  	
   

  	
  96

  
	
  SECTION 11.03.

  	
   

  	
  Communication by Holders of Notes with Other Holders of Notes

  	
   

  	
  98

  
	
  SECTION 11.04.

  	
   

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  98

  
	
  SECTION 11.05.

  	
   

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  98

  
	
  SECTION 11.06.

  	
   

  	
  Rules by Trustee and Agents

  	
   

  	
  98

  
	
  SECTION 11.07.

  	
   

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

  	
   

  	
  99

  
	
  SECTION 11.08.

  	
   

  	
  Governing Law

  	
   

  	
  99

  
	
  SECTION 11.09.

  	
   

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  99

  
	
  SECTION 11.10.

  	
   

  	
  Successors

  	
   

  	
  99

  
	
  SECTION 11.11.

  	
   

  	
  Severability

  	
   

  	
  99

  
	
  SECTION 11.12.

  	
   

  	
  Counterpart Originals

  	
   

  	
  99

  
	
  SECTION 11.13.

  	
   

  	
  Table of Contents, Headings, Etc.

  	
   

  	
  99

  
	
  SECTION 11.14.

  	
   

  	
  Force Majeure

  	
   

  	
  100

  
	
  SECTION 11.15.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  FORM OF NOTE

  	
   

  	
   

  
	
  EXHIBIT B

  	
   

  	
  FORM OF GUARANTEE

  	
   

  	
   

  
	
  EXHIBIT C

  	
   

  	
  FORM OF CERTIFICATE OF TRANSFER

  	
   

  	
   

  
	
  EXHIBIT D

  	
   

  	
  FORM OF CERTIFICATE OF EXCHANGE

  	
   

  	
   

  



 


iv














 


INDENTURE
dated as of July 28, 2008 between HSN, Inc. (the “Issuer”), a Delaware corporation and The
Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”).


 


The
Issuer and the Trustee agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the Issuer’s 11.25% Senior
Notes due 2016.


 


RECITALS


 


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


 


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


 


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


 


ARTICLE
1


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION 1.01.   Definitions.


 


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


 


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


 


“Affiliate” of any specified Person means
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.  For purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,” “controlled by”
and “under common control with”), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.


 

















 


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


 


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


 


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


 


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


 


(a)           transfers
of cash or Cash Equivalents;


 


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


 


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


 


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


 


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


 


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


 


(g)           any
transfer of receivables and related assets in connection with a Qualified
Receivables Transaction;


 


2

















 


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


 


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


 


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


 


“Board
of Directors” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Cash
Equivalents” means:


 


(a)           United
States dollars;


 


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


 


3

















 


(c)           certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding one year and overnight bank deposits, in each case with any
commercial bank having capital and surplus in excess of $500.0 million;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)           during
any period of twelve (12) consecutive months, a majority of the members of
the Board of Directors of the Issuer ceases to be composed of individuals who
were either (i) nominated by the Board of Directors of the Issuer with the
affirmative vote of a majority of the members of said Board of Directors at the
time of such 


 


4

















 


nomination or election or (ii) appointed by
directors so nominated or elected or appointed by Permitted Holders; or


 


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


 


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


 


“Commission” means the Securities and Exchange Commission.


 


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


 


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


 


(b)           Consolidated
Interest Expense; and


 


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


 


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


 


“Consolidated Fixed Charge Coverage Ratio”
means, with respect to any Person, the ratio of Consolidated Cash Flow of such
Person during the most recently ended four full fiscal 


 


5

















 


quarters (the “Measurement Period”) ending prior to the
date of the transaction giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio for which financial statements are available (the “Transaction Date”) to Consolidated Fixed
Charges of such Person for the Measurement Period.  In addition to and without limitation of the
foregoing, for purposes of this definition, “Consolidated Cash Flow” and “Consolidated
Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such
calculation to:


 


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


 


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


 


Furthermore,
in calculating “Consolidated Fixed Charges” for purposes of determining the
denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage
Ratio”:


 


(1)           interest
on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and


 


(2)           notwithstanding
clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements
relating to Hedging Obligations, shall be deemed to accrue at the rate per
annum resulting after giving effect to the operation of such agreements.


 


6

















 


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


 


(1)           Consolidated
Interest Expense for such period; plus


 


(2)           the
product of (x) the amount of all dividend payments on any series of
Disqualified Stock of such Person or Preferred Equity Interest of such Person’s
Restricted Subsidiaries (other than dividends paid in Qualified Capital Stock
and other than dividends paid by a Restricted Subsidiary of such Person to such
Person or to a Restricted Subsidiary of such Person) paid, accrued or scheduled
to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated federal, state and local income tax rate of such
Person, expressed as a decimal.


 


“Consolidated Interest Expense” means, with
respect to any Person for any period, consolidated interest expense of such
Person for such period, whether paid or accrued, including amortization of
original issue discount and deferred financing costs, noncash interest payments
and the interest component of Capital Lease Obligations, on a consolidated
basis determined in accordance with GAAP; provided,
however, that with respect to the
calculation of the consolidated interest expense of the Issuer, the interest
expense of Unrestricted Subsidiaries shall be excluded.


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Consolidated Total Assets” shall mean, as
of any date of determination for any Person, the total assets of such Person
and its Subsidiaries on a consolidated basis, as shown on 


 


8

















 


the most recent balance
sheet of such Person immediately preceding such date of determination.


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


“Disqualified Stock” means any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the Holders thereof, in whole or in
part, on or prior to the date on which the Notes mature; provided, however,
that any such Capital Stock may require the issuer of such Capital Stock to
make an offer to purchase such Capital Stock upon the occurrence of certain
events if the terms of such Capital Stock provide that such an offer may not be
satisfied and the purchase of such Capital Stock may not be consummated until
the 91st day after the purchase of the Notes as required by Section 4.15.


 


“Domestic Cash Amount” means the amount of
cash and Cash Equivalents reflected in the bank statements of the Issuer and
its Domestic Subsidiaries immediately after giving effect to the Transactions
in an aggregate amount not to exceed $50 million.


 


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


 


“Domestic Subsidiaries” shall mean all
Subsidiaries incorporated, formed or organized under the laws of the United
States of America, any State thereof or the District of Columbia.


 


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


 


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


 


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


 


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


 


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


 


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


 


10














 


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


 


“Financing
Subsidiary” means a Subsidiary of the Issuer:


 


(1)           that is formed solely for the purpose of, and that engages
in no activities other than activities in connection with, financing the
purchase of customer premise and receiving equipment (including delivery and
installation costs) by the Issuer’s retail customers;


 


(2)           that is designated by the Issuer as a Financing
Subsidiary;


 


(3)           no portion of the Indebtedness or any other obligation
(contingent or otherwise) of which (a) is at any time guaranteed by the
Issuer or any Restricted Subsidiary, (b) is at any time recourse to or
obligates the Issuer or any Restricted Subsidiary in any way or (c) subjects
any asset of the Issuer or any other Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction thereof;


 


(4)           with which neither the Issuer nor any Restricted
Subsidiary has any material contract, agreement, arrangement or understanding
other than contracts, agreements, arrangements and understandings entered into
in the ordinary course of business on terms no less favorable to the Issuer or
such Restricted Subsidiary than those that might be obtained at the time from
Persons that are not the Issuer’s Affiliates; and


 


(5)           with respect to which neither the Issuer nor any
Restricted Subsidiary has any obligation (a) to subscribe for additional
shares of Capital Stock therein or make any additional capital contribution or
similar payment or transfer thereto or (b) to maintain or preserve the
solvency or any balance sheet term, financial condition, level of income or
results of operations thereof.


 


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


 


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


 


“GAAP”
means United States generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting profession
of the United States, which are applicable as of


 


11

















 


the
date of determination; provided
that, except as otherwise specifically provided, all calculations made for
purposes of determining compliance with the terms of the provisions of this
Indenture shall utilize GAAP as in effect on the Issue Date.


 


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


 


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


 


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


 


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


 


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


 


“Guarantor”
means any direct or indirect Domestic Restricted Subsidiary of the Issuer that
guarantees the Notes and its successors and assigns.


 


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


 


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


 


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


 


“Indebtedness”
means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof, but excluding, in any case, any undrawn letters
of credit) or representing the balance deferred and unpaid of the purchase
price of any property (including pursuant to capital leases) or representing
any Hedging Obligations or Foreign Currency Obligations, except any such
balance that constitutes an accrued expense or trade payable, if and to the
extent any of


 


12

















 


the
foregoing (other than Hedging Obligations or Foreign Currency Obligations)
would appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and also includes, to the extent not otherwise included,
the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or, with respect to any
Restricted Subsidiary of such Person, the liquidation preference with respect
to, any Preferred Equity Interests (but excluding, in each case, any accrued
dividends) as well as the guarantee of items that would be included within this
definition.


 


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


 


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


 


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


 


“Initial Notes”
means the $240.0 million aggregate principal amount of 11.25% Senior Notes due
2016 of the Issuer issued under this Indenture on the Issue Date.


 


“Initial
Purchasers”  means,
with respect to the Initial Notes, Banc of America Securities LLC, J.P. Morgan
Securities Inc., Morgan Stanley & Co. Incorporated, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC,
Barclays Capital Inc., Scotia Capital (USA) Inc., Daiwa Securities America
Inc., Morgan Keegan & Company, Inc., Wells Fargo Securities, LLC,
BB&T Capital Markets, a division of Scott & Stringfellow, Inc.,
and Fifth Third Securities, Inc.


 


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


 


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


 


“Issue Date”
means July 28, 2008.


 


13

















 


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


 


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


 


“Liberty” means Liberty Media Corporation, a Delaware
corporation.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement and any lease in the nature
thereof).


 


“Make Whole
Amount” means, with respect to any Note at any redemption date, as
determined by the Issuer, the greater of (i) 1.0% of the principal amount
of such Note and (ii) the excess, if any, of (A) an amount equal to
the present value of (1) the redemption price of such Note at August 1,
2012 plus (2) the remaining scheduled interest payments on the Notes to be
redeemed (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date) to August 1,
2012 (other than interest accrued to the redemption date), computed using a
discount rate equal to the Treasury Rate plus 50 basis points over (B) the
principal amount of the Notes to be redeemed.


 


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


 


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


 


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


 


“Net Proceeds”
means the aggregate cash proceeds received by the Issuer or any of its
Restricted Subsidiaries, as the case may be, in respect of any Asset Sale, net
of the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (estimated reasonably and in good faith by the Issuer and after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
secured by a


 


14

















 


Lien
on the asset or assets that are the subject of such Asset Sale, any reserve for
adjustment in respect of the sale price of such asset or assets and any reserve
in accordance with GAAP against any liabilities associated with the asset disposed
of in such Asset Sale and retained by the Issuer or any of its Subsidiaries
after such Asset Sale, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters, or against any
indemnification obligations associated with such Asset Sale.  Net Proceeds shall exclude any non-cash
proceeds received from any Asset Sale, but shall include such proceeds when and
as converted by the Issuer or any Restricted Subsidiary to cash.


 


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


 


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


 


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


 


“Offering
Memorandum” means the offering memorandum dated July 16, 2008
relating to and used in connection with the initial offering of the Initial
Notes.


 


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


 


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


 


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


 


“Outstanding Receivables
Amount” shall mean, at any time, the aggregate outstanding balance
of advances made to a Non-Receivables Recourse Subsidiary in a Qualified
Receivables Transaction by a Person other than the Issuer or a Restricted
Subsidiary in connection with a Qualified Receivables Transaction.


 


“Parent”
means IAC and its successors, in each case together with each Subsidiary of
Parent that beneficially owns any Equity Interests of the Issuer.


 


15

















 


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


 


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


 


“Permitted Holder”
means each of (a) prior to the Spin-Off, IAC and its Subsidiaries, (b) any
Person who acquires beneficial ownership of Equity Interests of the Issuer in a
transaction constituting a Change of Control as to which a Change of Control
Offer is consummated and (c) any Affiliate of the foregoing formed by such
Person for purposes of holding its equity investment in the Issuer (but
excluding any other portfolio company of any such Person).  For the avoidance of doubt, following the
Spin-Off, neither IAC nor Liberty (and their respective Affiliates) will be a
Permitted Holder unless and until they have satisfied their obligations under
clause (b) above.


 


“Permitted
Investments” means:


 


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


 


(b)           Investments in Cash Equivalents and Marketable Securities;


 


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


 


(d)           Investments by the Issuer or any of its Subsidiaries in a
Person if, as a result of such Investment: 
(i) such Person becomes a Restricted Subsidiary or (ii) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Issuer
or a Restricted Subsidiary;


 


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


 


(f)            Investments in existence on the Issue Date;


 


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


 


16

















 


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


 


(i)            other Investments in an amount not to exceed the greater
of (x) $40 million and (y) 1.0% of Consolidated Total Assets
outstanding at any time for all such Investments made after the Issue Date,
plus, so long as no Default or Event of Default shall have occurred or be
continuing, the Domestic Cash Amount;


 


(j)            any Investment by the Issuer or any Restricted Subsidiary
in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in
any other Person in connection with a Qualified Receivables Transaction, so
long as any Investment in a Receivables Subsidiary is in the form of a Purchase
Money Note or an Investment in Capital Stock;


 


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


 


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


 


“Permitted Liens”
means:


 


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


 


(b)           Liens securing (x) up to $300.0 million of
Indebtedness under any Credit Facility (and related Hedging Obligations and
cash management obligations to the extent such Liens arise under the definitive
documentation governing such Indebtedness and the incurrence of such
obligations is not otherwise prohibited by this Indenture) permitted by
clause (2) of Section 4.09(b) and (y) other
Indebtedness permitted under Section 4.09; provided that, in the case of any such Indebtedness
described in this subclause (y), such Indebtedness, when aggregated with
the amount of Indebtedness of the Issuer and the Guarantors which is secured by
a Lien, does not cause the Consolidated Secured Indebtedness Leverage Ratio to
exceed 1.25 to 1.0 as of the last day of the most recent quarter for which
internal financial statements are available on the date such Indebtedness is
incurred;


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


(i)            Liens existing on the Issue Date;


 


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


 


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


 


(l)            Liens on the Capital Stock of a Receivables Subsidiary
and accounts receivable and related assets described in the definition of
Qualified Receivables Transaction, in each case, incurred in connection with a
Qualified Receivables Transaction;


 


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


 


18

















 


other similar obligations
(exclusive of obligations for the payment of borrowed money);


 


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


 


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


 


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


 


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


 


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


 


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


 


(t)            Liens securing Indebtedness of any Foreign Subsidiary
incurred in accordance with Section 4.09(b)(16);


 


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


 


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


 


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


 


(x)                                    other Liens securing Indebtedness that is
permitted by the terms of this Indenture to be outstanding having an aggregate
principal amount at any one time outstanding not to exceed $40 million.


 


19

















 


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


 


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


 


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


 


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


 


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


 


20














 


“Purchase Money
Note” means a promissory note of a Receivable Subsidiary to the
Issuer or any Restricted Subsidiary, which note must be repaid from cash
available to the Receivable Subsidiary, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.


 


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


 


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


 


“Qualified
Receivables Transaction” means any transaction or series of
transactions entered into by the Issuer or any of its Restricted Subsidiaries
pursuant to which the Issuer or such Restricted Subsidiary sells, conveys or
otherwise transfers (including the grant of a backup security interest in the
assets purported to be transferred for any such sale, conveyance or transfer)
to (a) a Receivables Subsidiary (in the case of a transfer by the Issuer
or any of the Restricted Subsidiaries) or (b) any other Person (in the
case of a transfer by a Receivables Subsidiary), or grants a security interest
in, any accounts receivable (whether now existing or arising in the future) of
the Issuer or any of its Restricted Subsidiaries, and any assets related
thereto, including, without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with an accounts receivable financing
transaction; provided such
transaction is on market terms at the time the Issuer or such Restricted
Subsidiary enters into such transaction.


 


“Rating Agencies”
means:


 


(a)           S&P;


 


(b)           Moody’s; or


 


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


 


“Receivables
Repurchase Obligation” means any obligation of a seller of
receivables in a Qualified Receivables Financing to repurchase receivables
arising as a result of a breach of a representation, warranty or covenant or
otherwise, including as a result of a receivable or portion thereof becoming
subject to any asserted defense, dispute, off-set or counterclaim of any kind
as a result of any action taken by, any failure to take action by or any other
event relating to the seller.


 


21

















 


“Receivables
Subsidiary” means a Subsidiary of the Issuer:


 


(1)           that is formed solely for the purpose of, and that engages
in no activities other than activities in connection with, financing accounts
receivable of the Issuer and/or its Restricted Subsidiaries;


 


(2)           that is designated by the Issuer as a Receivables
Subsidiary and that has total assets at the time of such creation and
designation with a book value of $10,000 or less;


 


(3)           no portion of the Indebtedness or any other obligation
(contingent or otherwise) of which (a) is at any time guaranteed by the
Issuer or any Restricted Subsidiary (excluding guarantees of obligations (other
than any guarantee of Indebtedness) pursuant to Standard Securitization
Undertakings), (b) is at any time recourse to or obligates the Issuer or
any Restricted Subsidiary in any way, other than pursuant to Standard
Securitization Undertakings or (c) subjects any asset of the Issuer or any
other Restricted Subsidiary, directly or indirectly, contingently or otherwise,
to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings (such Indebtedness, “Non-Recourse
Receivables Subsidiary Indebtedness”);


 


(4)           with which neither the Issuer nor any Restricted
Subsidiary has any material contract, agreement, arrangement or understanding
other than contracts, agreements, arrangements and understandings entered into
in the ordinary course of business on terms no less favorable to the Issuer or
such Restricted Subsidiary than those that might be obtained at the time from
Persons that are not the Issuer’s Affiliates in connection with a Qualified
Receivables Transaction and fees payable in the ordinary course of business in
connection with servicing accounts receivable in connection with such a
Qualified Receivables Transaction; and


 


(5)           with respect to which neither the Issuer nor any
Restricted Subsidiary has any obligation (a) to subscribe for additional
shares of Capital Stock therein or make any additional capital contribution or
similar payment or transfer thereto or (b) to maintain or preserve the
solvency or any balance sheet term, financial condition, level of income or
results of operations thereof.


 


“Registration
Rights Agreement” means the Registration Rights Agreement for the
Initial Notes, dated as of July 28, 2008, by and among the Issuer, the
Guarantors and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time.


 


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


 


“Regulation S
Global Note” means a Global Note bearing the Private Placement
Legend and deposited with or on behalf of the Depositary and registered in the
name of the Depositary or its nominee, issued in an initial denomination equal
to the outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.


 


22

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


“Rule 904”
means Rule 904 promulgated under the Securities Act.


 


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


 


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


 


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


 


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


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X
promulgated pursuant to the Securities Act, as such regulation is in effect on
the Issue Date; provided, however, that neither a Receivables
Subsidiary nor a Financing Subsidiary shall be considered to be a “Significant
Subsidiary.”


 


23

















 


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


 


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


 


“Standard
Securitization Undertakings” means representations, warranties,
covenants, indemnities and guarantees of performance entered into by the Issuer
or any Restricted Subsidiary which are reasonably customary in an accounts
receivable or equipment lease financing securitization transaction, including,
without limitation, those relating to the servicing of the assets of a
Receivables Subsidiary or a Financing Subsidiary, it being understood that any
Receivables Repurchase Obligation which is customary for off-balance sheet
receivables financing shall be deemed to be a Standard Securitization
Undertaking.


 


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


 


“Subsidiary”
or “Subsidiaries” means, with
respect to any Person, any corporation, limited liability company, association
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of such Person or a combination thereof.


 


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


 


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


 


“Total Senior
Debt” means, as at any date of determination, the aggregate
principal amount of Indebtedness (other than Hedging Obligations and cash
management obligations to the extent permitted by this Indenture) outstanding
on such date, determined on a consolidated basis, that is not Subordinated
Indebtedness.


 


24

















 


“Transactions”
means the Spin-Off, the issuance of the Notes on the Issue Date, the initial
borrowings under the Credit Agreement, the deposit of the Escrowed Property
with the Escrow Agent, the distribution of the proceeds from the Notes issued
on the Issue Date and the initial borrowings under the Credit Agreement to IAC
and the other transactions undertaken in connection with the foregoing to the
extent not inconsistent with the Offering Memorandum or the pro forma financial
statements contained in the Offering Memorandum.


 


“Treasury Rate”
means, at the time of computation, the yield to maturity of United States
Treasury Securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15(519) which has become
publicly available at least two Business Days prior to the 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 the
redemption date to August 1, 2012; provided,
however, that if the period from
the redemption date to August 1, 2012 is not equal to the constant
maturity of a United States Treasury Security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury Securities for which such yields are given,
except that if the period from the redemption date to August 1, 2012 is
less than one year, the weekly average yield on actually traded United States
Treasury Securities adjusted to a constant maturity of one year shall be used.


 


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


 


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


 


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


 


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


 


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


 


(a)           no portion of the Indebtedness or any other obligation
(contingent or otherwise) of which, immediately after such designation:  (i) is guaranteed by the Issuer or any
other Subsidiary of the Issuer (other than another Unrestricted Subsidiary);


 


25

















 


(ii) is recourse to or
obligates the Issuer or any other Subsidiary of the Issuer (other than another
Unrestricted Subsidiary) in any way; or (iii) subjects any property or
asset of the Issuer or any other Subsidiary of the Issuer (other than another
Unrestricted Subsidiary), or Equity Interests issued by such Subsidiary,
directly or indirectly, contingently or otherwise, to satisfaction thereof;


 


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


 


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


 


(d)           after giving effect to any such designation, the Issuer’s
Consolidated Fixed Charge Coverage Ratio would have been at least 2.0 to 1.0.


 


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


 


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


 


“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment by (b) the then
outstanding principal amount of such Indebtedness.


 


26

















 


SECTION 1.02.      Other
Definitions.


 


                                                                                                                               


	
   

  	
   

  	
  Defined

  
	
  Term

  	
   

  	
  in Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Payment”

  	
   

  	
  4.15

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Covenant Defeasance”

  	
   

  	
  8.04

  
	
  “Covenant Suspension Event”

  	
   

  	
  4.19

  
	
  “Deadline”

  	
   

  	
  4.20

  
	
  “DTC”

  	
   

  	
  2.01(b)

  
	
  “Escrow Agent”

  	
   

  	
  4.20

  
	
  “Escrow Agreement”

  	
   

  	
  4.20

  
	
  “Escrowed Property”

  	
   

  	
  4.20

  
	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Excess Proceeds Offer”

  	
   

  	
  3.08(a)

  
	
  “Exchange”

  	
   

  	
  Exhibit D

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Interest Payment Date”

  	
   

  	
  Exhibit A

  
	
  “Legal Defeasance”

  	
   

  	
  8.03

  
	
  “Measurement Period”

  	
   

  	
  1.01

  
	
  “Non-Recourse Receivables Subsidiary Indebtedness”

  	
   

  	
  1.01

  
	
  “Offer Amount”

  	
   

  	
  3.08(b)

  
	
  “Offer Period”

  	
   

  	
  3.08(b)

  
	
  “Owner”

  	
   

  	
  Exhibit D

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  6.01(f)

  
	
  “Purchase Date”

  	
   

  	
  3.08(b)

  
	
  “Refinancing Indebtedness”

  	
   

  	
  4.09(b)

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Release”

  	
   

  	
  4.20(b)

  
	
  “Release Certificate”

  	
   

  	
  4.20

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Reversion Date”

  	
   

  	
  4.19

  
	
  “Rule 144”

  	
   

  	
  2.01(c)

  
	
  “Special Mandatory Redemption”

  	
   

  	
  3.09

  
	
  “Special Mandatory Redemption Amount”

  	
   

  	
  4.20

  
	
  “Special Mandatory Redemption Date”

  	
   

  	
  3.09

  
	
  “Special Mandatory Redemption Price”

  	
   

  	
  3.09

  
	
  “Sub Entity”

  	
   

  	
  1.01

  
	
  “Transaction Date”

  	
   

  	
  1.01

  



 


27

















 


	
  “Transfer”

  	
   

  	
  Exhibit C

  
	
  “Transferee”

  	
   

  	
  Exhibit C

  
	
  “Transferor”

  	
   

  	
  Exhibit C

  
	
  “Treasury Securities”

  	
   

  	
  4.20

  



 


 


SECTION 1.03.      Incorporation by Reference of Trust Indenture Act.


 


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


 


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


 


“indenture securities” means
the Notes;


 


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


 


“indenture to be qualified”
means this Indenture;


 


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


 


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


 


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


 


SECTION 1.04.      Rules of
Construction.


 


Unless the context otherwise requires,


 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


SECTION 1.05.      Acts
of Holders; Record Dates.


 


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


 


(b)           The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such Person the execution thereof.  Where such execution is by a signer acting in
a capacity other than such Person’s individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such Person’s
authority.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.


 


(c)           The Issuer may, in the circumstances permitted by the TIA,
fix any date as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or take by Holders. 
If not set by the Issuer prior to the first solicitation of a Holder
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 2.05 hereof) prior to such first
solicitation or vote, as the case may be. 
With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.


 


ARTICLE 2


 


THE NOTES


 


SECTION 2.01.      Form and
Dating.


 


(a)           The Notes and the Trustee’s certificate of authentication
shall be substantially in the form of Exhibit A hereto, the terms
of which are incorporated in and made a part hereof.  The Notes may have notations, legends or
endorsements approved as to form by the Issuer, and required by law, stock
exchange rule, agreements to which the Issuer is subject or usage.  Each Note shall be dated the date of its
authentication.  The Notes shall be
issuable only in denominations of $2,000 and integral multiples of $1,000 in
excess thereof.


 


29

















 


(b)           The Notes shall initially be issued in the form of one or
more Global Notes and The Depository Trust Company (“DTC”), its nominees, and their respective successors, shall
act as the Depositary with respect thereto. 
Each Global Note shall (i) be registered in the name of the
Depositary for such Global Note or the nominee of such Depositary, (ii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary’s
instructions, and (iii) shall bear a legend (the “Global Note Legend”) in substantially the
following form:


 


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


 


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


 


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


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:


 


30

















 


(1) REPRESENTS THAT IT, AND ANY ACCOUNT FOR
WHICH IT IS ACTING, IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ (WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT
DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT: (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (C) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE RESALE RESTRICTION
TERMINATION DATE WILL BE THE DATE (1) THAT IS AT LEAST ONE YEAR AFTER THE
LAST ORIGINAL ISSUE DATE HEREOF AND (2) ON WHICH THE COMPANY INSTRUCTS THE
TRUSTEE THAT THIS LEGEND SHALL BE DEEMED REMOVED FROM THIS SECURITY, IN
ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE RELATING TO THIS
SECURITY. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE,
THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH
LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE
REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN
COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


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


 


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


 


31














 


(d)        Any temporary Note that is a Global Note
issued pursuant to Regulation S shall bear a legend (the “Regulation S Temporary Global Note Legend”)
in substantially the following form:


 


THE
RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN
THE INDENTURE.  THE HOLDER OF THIS NOTE
BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT IS A
PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF
THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE 903 OF
REGULATION S, ANY OFFER OR SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S.
PERSON TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF
RULE 902(k) UNDER THE SECURITIES ACT


 


SECTION 2.02.      Form of
Execution and Authentication.


 


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


 


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


 


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


 


The
Trustee shall authenticate (i) Initial Notes for original issue on the
Issue Date in an aggregate principal amount of $240.0 million, (ii) pursuant
to the Exchange Offer, Exchange Notes from time to time for issue only in
exchange for a like principal amount of Initial Notes and (iii) subject to
compliance with Section 4.09 hereof, one or more series of Notes for
original issue after the Issue Date (such Notes to be substantially in the form
of Exhibit A) in an unlimited amount (and if issued with a Private
Placement Legend, the same principal amount of Exchange Notes in exchange
therefor upon consummation of a registered exchange offer), in each case upon
written order of the Issuer in the form of an Officers’ Certificate, which
Officers’ Certificate shall, in the case of any issuance pursuant to clause (iii) above,
certify that such issuance is in compliance with Section 4.09 hereof.  In addition, each such Officers’ Certificate
shall specify the amount of Notes to be authenticated, the date on which the
Notes are to be authenticated, whether the securities are to be Initial Notes,
Exchange Notes or Notes issued under clause (iii) of the preceding
sentence and the aggregate principal amount of Notes outstanding on the date of
authentication, and shall further specify the amount of such Notes to be issued
as Global Notes or Definitive Notes. 
Such Notes shall 


 


32

















 


initially be in the form
of one or more Global Notes, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the Notes
to be issued, (ii) shall be registered in the name of the Depositary or
its nominee and (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction. 
All Notes issued under this Indenture shall vote and consent together on
all matters as one class and no series of Notes will have the right to vote or
consent as a separate class on any matter.


 


The
Trustee may appoint an authenticating agent acceptable to the Issuer to
authenticate Notes.  Unless limited by
the terms of such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so.  Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent.  An
authenticating agent has the same rights as an Agent to deal with the Issuer or
any Affiliate of the Issuer.


 


SECTION 2.03.      Registrar and
Paying Agent.


 


The
Issuer shall maintain (i) an office or agency where Notes may be presented
for registration of transfer or for exchange (including any co-registrar, the “Registrar”) and (ii) an office or
agency where Notes may be presented for payment (“Paying Agent”).  The
Registrar shall keep a register of the Notes and of their transfer and
exchange.  The Issuer may appoint one or
more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent.  The Issuer  may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of a Note.  The Issuer shall notify the Trustee in
writing and the Trustee shall notify the Holders of the Notes of the name and
address of any Agent not a party to this Indenture.  The Issuer may act as Paying Agent, Registrar
or co-registrar.  The Issuer shall enter
into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA.  The agreement shall implement the provisions
hereof that relate to such Agent.  The
Issuer shall notify the Trustee in writing of the name and address of any such
Agent.  If the Issuer fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act, as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07 hereof.


 


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


 


SECTION 2.04.      Paying Agent To
Hold Money in Trust.


 


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


 


33

















 


for the money delivered
to the Trustee.  If the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of the Notes all money held by it as Paying Agent.


 


SECTION 2.05.      Lists of Holders of
the Notes.


 


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


 


SECTION 2.06.      Transfer and
Exchange.


 


(a)           Transfer and Exchange of Global Notes.  A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. 
Beneficial interests in Global Notes will be exchanged by the Issuer for
Definitive Notes, subject to any applicable laws, if (i) the Issuer
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary and a successor Depositary is not
appointed by the Issuer within 90 days after the date of such written notice
from the Depositary, (ii) the Issuer delivers to the Trustee notice from
the Depositary that it is no longer a clearing agency registered under the
Exchange Act and a successor Depositary is not appointed by the Issuer within
90 days after the date of such written notice from the Depositary, (iii) the
Issuer in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and deliveres a written
notice to such effect to the Trustee, (iv) upon request of the Trustee or
Holders of a majority of the aggregate principal amount of outstanding Notes if
there shall have occurred and be continuing a Default or Event of Default with
respect to the Notes; provided
that in no event shall the Reg S Temporary Global Note be exchanged by the
Issuer for Definitive Notes prior to (A) the expiration of the Restricted
Period and (B) the receipt by the Registrar of any certificate identified
by the Issuer and its counsel to be required pursuant to Rule 903 or Rule 904
under the Securities Act. In any such case, the Issuer will notify the Trustee
in writing that, upon surrender by the Participants and Indirect Participants
of their interests in such Global Note, Certificated Notes will be issued to
each Person that such Participants, Indirect Participants and DTC jointly
identify as being the beneficial owner of the related Notes.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof.  Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall
be authenticated and delivered in the form of, and shall be, a Global
Note.  A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06.  However, beneficial 


 


34

















 


interests
in a Global Note may be transferred and exchanged as provided in paragraph (b),
(c) or (f) below.


 


(b)           Transfer and Exchange of Beneficial Interests in the
Global Notes.  The transfer
and exchange of beneficial interests in the Global Notes shall be effected
through the Depositary, in accordance with the provisions hereof and the
Applicable Procedures.  Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth in this Indenture to the extent required
by the Securities Act.  Transfers of
beneficial interests in the Global Notes also shall require compliance with the
applicable subparagraphs below.


 


(i)       Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, no transfer of beneficial interests in a
Regulation S Global Note may be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser) unless permitted by
applicable law and made in compliance with subparagraphs (ii) and (iii) below.  Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this subparagraph (i) unless specifically stated above.


 


(ii)     All
Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to subparagraph (i) above,
the transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase or, (B) (1) if Definitive Notes are
at such time permitted to be issued pursuant to this Indenture, a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to
be issued a Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to
the Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange referred
to in (1) above.  Upon consummation
of an Exchange Offer by the Issuer in accordance with paragraph (f) below,
the requirements of this subparagraph (ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the holder of such beneficial interests in
the Restricted Global Notes.  


 


35

















 


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


 


(iii)    Transfer
of Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of subparagraph (ii) above and the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


(D)       the
Registrar receives the following:


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(A)       such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not 


 


38

















 


(1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an “affiliate” (as defined in Rule 144) of the Issuer;


 


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


 


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


 


(D)       the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


(iii)    Transfer
and Exchange of Beneficial Interests in Unrestricted Global Notes for
Unrestricted Definitive Notes. 
If any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon satisfaction of the conditions set forth
in subparagraph (b)(ii) above, the Trustee shall cause the aggregate
principal amount of 


 


39

















 


the applicable Global Note to be reduced accordingly
pursuant to paragraph (h) below, and the Issuer shall execute and the
Trustee shall authenticate and deliver to the Person designated in the certificate
a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this subparagraph (c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest pursuant to this subparagraph (c)(iii) shall
not bear the Private Placement Legend.


 


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


 


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


 


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


 


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


 


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


 


the Trustee shall cancel
the Restricted Definitive Note, increase or cause to be increased the aggregate
principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the 144A Global
Note, and in the case of clause (C) above, the Regulation S Global Note.


 


(ii)     Transfer
and Exchange of Restricted Definitive Notes for Beneficial Interests in
Unrestricted Global Notes.  A
Holder of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer 


 


40

















 


such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note only if:


 


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


 


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


 


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


 


(D)       the
Registrar receives the following:


 


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


 


(z)         if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the applicable certifications in item (4) thereof;


 


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


 


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


 


(iii)    Transfer
and Exchange of Unrestricted Definitive Notes for Beneficial Interests in
Unrestricted Global Notes.  A
Holder of an Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer such
Unrestricted Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt 


 


41

















 


of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the
Unrestricted Global Notes.


 


If any
such exchange or transfer from an Unrestricted Definitive Note or a Restricted
Definitive Note, as the case may be, to a beneficial interest is effected
pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time
when an Unrestricted Global Note has not yet been issued, the Issuer shall
issue and, upon receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of Unrestricted
Definitive Notes or Restricted Definitive Notes, as the case may be, so transferred.


 


(e)           Transfer and Exchange of Definitive Notes for
Definitive Notes.  Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this paragraph (e), the Registrar shall register the transfer or
exchange of Definitive Notes.  Prior to
such registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or its attorney, duly authorized in writing.  In addition, the requesting Holder shall
provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this paragraph
(e).


 


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


 


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


 


(B)        if the
transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit C
hereto, including the certifications in item (2) thereof; and


 


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


 


(ii)     Transfer
and Exchange of Restricted Definitive Notes for Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder 


 


42

















 


thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if


 


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


 


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


 


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


 


(D)       the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


(f)            Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with the Registration Rights Agreement, the Issuer shall issue and,
upon receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate (i) one or 


 


43

















 


more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that make the certifications in the
applicable Letters of Transmittal required by Section 2(a) of the
Registration Rights Agreement, and accepted for exchange in an Exchange Offer and
(ii) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in an
Exchange Offer.  Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amounts.


 


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


 


(i)      Private
Placement Legend.


 


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


 


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


 


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


 


(iii)    Regulation
S Temporary Global Note Legend. 
Each temporary Note that is a Global Note issued pursuant to Regulation
S shall bear the Regulation S Temporary Global Note Legend.


 


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


 


44

















 


for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.


 


(i)            General Provisions Relating to Transfers and
Exchanges.


 


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


 


(ii)     No service charge shall be made to a holder
of a beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.02, 2.10, 3.06, 3.08 and 9.05 hereof).


 


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


 


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


 


(v)     The Issuer shall not be required (A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business on a Business Day 15 days before the day
of any selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection or (B) to register
the transfer of or to exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in part.


 


(vi)    Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and the Issuer
may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal
of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuer shall be affected by notice to the contrary.


 


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


 


45














 


(viii)      All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by facsimile.


 


SECTION 2.07.      Replacement Notes.


 


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


 


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


 


SECTION 2.08.      Outstanding Notes.


 


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


 


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


 


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


 


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


 


SECTION 2.09.      Treasury Notes.


 


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


 


46

















 


SECTION 2.10.      Temporary Notes.


 


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


 


SECTION 2.11.      Cancellation.


 


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


 


SECTION 2.12.      Defaulted Interest.


 


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


 


SECTION 2.13.      Record
Date.


 


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


 


SECTION 2.14.      CUSIP
Number.


 


The
Issuer in issuing the Notes may use a “CUSIP” number and, if it does so, the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to 


 


47

















 


Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes.  The Issuer shall promptly notify the Trustee
in writing of any change in the CUSIP number.


 


ARTICLE
3


 


REDEMPTION


 


SECTION 3.01.      Notices
to Trustee.


 


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


 


SECTION 3.02.      Selection of
Notes To Be Redeemed.


 


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


 


(b)     The
Trustee shall promptly notify the Issuer in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. 
Notes and portions of them selected shall be in amounts of $2,000 or
whole multiples of $1,000 in excess thereof; except that if all of the Notes of
a Holder are to be redeemed, the entire outstanding amount of Notes held by
such Holder, even if not a multiple of $1,000, shall be redeemed.  Except as provided in the preceding sentence,
provisions hereof that apply to Notes called for redemption also apply to
portions of Notes called for redemption.


 


48

















 


SECTION 3.03.      Notice of Redemption.


 


Subject
to the provisions of Sections 3.08 and 3.10 hereof, at least 30 days but not
more than 60 days before a redemption date, the Issuer shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder (with a
copy to the Trustee) whose Notes are to be redeemed to such Holder’s registered
address.


 


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


 


(i)        the
redemption date;


 


(ii)       the
redemption price;


 


(iii)      if any
Note is being redeemed in part only, the portion of the principal amount of
such Note to be redeemed and that, after the redemption date upon surrender of
such Note, a new Note or Notes in principal amount equal to the unredeemed
portion shall be issued in the name of the Holder thereof upon cancellation of
the original Note;


 


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


 


(v)      that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;


 


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


 


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


 


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


 


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


 


SECTION 3.04.      Effect of Notice of
Redemption.


 


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


 


49

















 


SECTION 3.05.      Deposit of
Redemption Price.


 


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


 


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


 


SECTION 3.06.      Notes Redeemed in
Part.


 


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


 


SECTION 3.07.      Optional
Redemption.


 


(a)     Except as
provided in paragraphs (b) and (c) below, the Notes will not be
redeemable at the Issuer’s option prior to August 1, 2012.  Thereafter, the Notes will be subject to
redemption at the option of the Issuer, in whole or in part, upon not less than
30 days nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest thereon to the applicable redemption date (subject to the
rights of holders of record of the Notes on the relevant record date to receive
payments of interest on the related interest payment date), if redeemed during
the 12-month period beginning on June 15 of the years indicated below:


 


	
  Year

  	
   

  	
   

  	
   

  	
  Percentage

  	
   

  	
   

  
	
  2012

  	
   

  	
  105.625%

  	
   

  
	
  2013

  	
   

  	
  102.813%

  	
   

  
	
  2014 and thereafter

  	
   

  	
  100.000%

  	
   

  



 


(b)     Notwithstanding
the foregoing, at any time and from time to time prior to August 1, 2011,
the Issuer may redeem up to 35% of the aggregate principal amount of the Notes
outstanding at a redemption price equal to 111.25% of the principal amount
thereof on the redemption date, together with accrued and unpaid interest to
such redemption date (subject to the rights of holders of record of the Notes
on the relevant record date to receive payments of 


 


50

















 


interest
on the related interest payment date), with the net cash proceeds of one or
more public or private sales of Qualified Capital Stock, other than proceeds
from a sale to the Issuer or any Subsidiary of the Issuer or any employee
benefit plan in which the Issuer or any of its Subsidiaries participates; provided that:  (i) at least 65% in aggregate principal
amount of the Notes originally issued remains outstanding immediately after the
occurrence of such redemption; and (ii) such redemption occurs no later
than the 120th day following such sale of Qualified Capital Stock.


 


(c)     In
addition, at any time and from time to time prior to August 1, 2012, the
Issuer may redeem all or any portion of the Notes outstanding at a redemption
price equal to (i) 100% of the aggregate principal amount of the Notes to
be redeemed, together with accrued and unpaid interest to such redemption date
(subject to the rights of holders of record of the Notes on the relevant record
date to receive payments of interest on the related interest payment date),
plus (ii) the Make Whole Amount.


 


SECTION 3.08.      Excess Proceeds
Offer.


 


(a)     When the
cumulative amount of Excess Proceeds that have not been applied in accordance
with Section 4.10 exceeds $50.0 million, the Issuer shall make an offer to
all Holders of the Notes (an “Excess
Proceeds Offer”) to purchase the maximum principal amount of Notes
that may be purchased out of such Excess Proceeds at an offer price in cash in
an amount equal to 100% of the principal amount thereof, together with accrued
and unpaid interest to the date fixed for the closing of such offer in
accordance with the procedures set forth herein.  To the extent the Issuer or a Restricted
Subsidiary is required under the terms of Indebtedness of the Issuer or such
Restricted Subsidiary (other than Subordinated Indebtedness), the Issuer shall
also make a pro rata offer to the Holders of such Indebtedness (including the
Notes) with such proceeds.  If the
aggregate principal amount of Notes and other pari
passu Indebtedness surrendered by Holders thereof exceeds the amount
of such Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased on
a pro rata basis.  To the extent that the
aggregate principal amount of Notes tendered pursuant to an Excess Proceeds
Offer is less than the amount of such Excess Proceeds, the Issuer may use any
remaining Excess Proceeds for general corporate purposes in compliance with the
provisions of this Indenture.  Upon
completion of an Excess Proceeds Offer, the amount of Excess Proceeds shall be
reset at zero.


 


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


 


51

















 


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


 


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


 


(e)     Upon the
commencement of any Excess Proceeds Offer, the Issuer shall send, by first
class mail, a notice to each of the Holders of the Notes, with a copy to the
Trustee.  The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Excess Proceeds Offer. 
The notice, which shall govern the terms of the Excess Proceeds Offer,
shall state:


 


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


 


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


 


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


 


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


 


(v)     that Holders electing to have a Note
purchased pursuant to any Excess Proceeds Offer shall be required to surrender
the Note, with the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Note completed, to the Issuer, a Depositary, if appointed by the
Issuer, or a Paying Agent at the address specified in the notice at least three
Business Days before the Purchase Date;


 


(vi)    that Holders shall be entitled to withdraw
their election if the Issuer, Depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is unconditionally withdrawing his election to have the Note
purchased;


 


52

















 


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


 


(viii)  that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.


 


(f)      On or
before the Purchase Date, the Issuer shall, to the extent lawful, accept for
payment, on a pro rata basis to
the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has
been tendered, all Notes or portion thereof tendered, and deliver to the
Trustee an Officers’ Certificate stating that such Notes or portions thereof
were accepted for payment by the Issuer in accordance with the terms of this Section 3.08.  The Issuer, Depositary or Paying Agent, as
the case may be, shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Note tendered by such Holder and accepted by the
Issuer for purchase, and the Issuer shall promptly issue a new Note, and the
Trustee shall authenticate and mail or deliver such new Note, to such Holder
equal in principal amount to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Issuer to the Holder thereof.  The Issuer shall publicly announce the
results of the Excess Proceeds Offer on the Purchase Date.


 


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


 


SECTION 3.09.      Special Mandatory
Redemption.


 


If the
Issuer does not deliver a notice to the Escrow Agent on or prior to 5:00 p.m.,
New York City time, on September 30, 2008 that the Spin-Off will be
consummated within five Business Days and that no Default or Event of Default
hereunder has occurred and is continuing, and then consummate the Spin-Off
within the five Business Day period, or if IAC elects to abandon the Spin-Off
prior thereto, then the Issuer will, on a day not more than 10 Business Days
following the Deadline or the date of the Release, as applicable (such date,
the “Special Mandatory Redemption Date”),
redeem all of the Notes (the “Special
Mandatory Redemption”) at a price equal to 100% of the principal
amount of the Notes plus accrued and unpaid interest from the Issue Date (the “Special Mandatory Redemption Price”).


 


53

















 


SECTION 3.10.      Notice of Special
Mandatory Redemption.


 


Notice
of the Special Mandatory Redemption shall be prepared and mailed by the Issuer
promptly to each Holder of Initial Notes at its registered address, the Trustee
and the Escrow Agent.


 


ARTICLE
4


 


COVENANTS


 


SECTION 4.01.      Payment of Notes.


 


(a)     The
Issuer shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the
Notes.  Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Issuer, holds as of 1:00 p.m. Eastern Time on the due date money
deposited by or on behalf of the Issuer in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.  If a payment date is
a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.


 


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


 


SECTION 4.02.      Maintenance of
Office or Agency.


 


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


 


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


 


54

















 


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


 


SECTION 4.03.      Reports.


 


(a)     Whether
or not required by the rules and regulations of the Commission, so long as
any Notes are outstanding, the Issuer shall furnish to the Holders of Notes all
quarterly and annual financial information, and on dates, that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Issuer was required to file such forms, including a “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report thereon by the
independent registered public accounting firm of the Issuer; provided, however,
that (i) to the extent such reports are filed with the Commission and
publicly available, no additional copies need be provided to Holders of the
Notes and (ii) with respect to June 30, 2008 (and periods then
ended), or for any prior dates or periods, the Issuer may satisfy such
obligations by furnishing carve-out financial data in form and detail
corresponding to the March 31, 2008 financial data included in the
Offering Memorandum so long as such information is filed or provided on or
before August 31, 2008.  In
addition, the Issuer will furnish to the Holders of the Notes substantially the
same reports that would be required to be filed with the Commission on Form 8-K
if the Issuer was required to file such forms.


 


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


 


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


 


SECTION 4.04.      Compliance Certificate.


 


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


 


55

















 


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 each is taking or proposes to take with
respect thereto).


 


SECTION 4.05.      Taxes.


 


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


 


SECTION 4.06.      Stay, Extension and
Usury Laws.


 


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


 


SECTION 4.07.      Limitation on
Restricted Payments.


 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)    make any Restricted Investment.


 


56

















 


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


 


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


 


(2)          after
giving effect to the incurrence of any Indebtedness the net proceeds of which
are used to finance such Restricted Payment, the Issuer’s Consolidated Fixed
Charge Coverage Ratio would have been at least 2.0 to 1.0; and


 


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


 


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


 


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


 


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


 


(D)    100% of
any cash dividends and other cash distributions actually received by the Issuer
and its Restricted Subsidiaries from an Unrestricted 


 


57

















 


Subsidiary since the Issue Date to the extent not
included in Consolidated Net Income; plus


 


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


 


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


 


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


 


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


 


(3)    purchases of receivables or other assets
pursuant to a Receivables Repurchase Obligation in connection with a Qualified
Receivables Transaction and the payment or distribution of Receivables Fees;


 


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


 


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(5)           repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
or upon the vesting of restricted stock units if such Equity Interests
represent the exercise price of such options or warrants or represent
withholding taxes due upon such exercise or vesting;


 


(6)           Restricted
Payments from the net proceeds of the Notes and the initial borrowings under
the Credit Agreement as described in the Offering Memorandum;


 


(7)           other
Restricted Payments in an aggregate amount from the Issue Date not to exceed
the greater of (x) $50 million and (y) 1.25% of Consolidated
Total Assets;


 


(8)           Specified
Affiliate Payments; and


 


(9)           the
Transactions.


 


(c)           Restricted Payments made pursuant to Section 4.07(a) and
clause (1) of Section 4.07(b) shall be included as Restricted
Payments in any computation made pursuant to Section 4.07(a)(3).  Restricted Payments made pursuant to clauses
(2), (3), (4), (5), (6), (7), (8) and (9) of this Section 4.07(b) shall
not be included as Restricted Payments in any computation made pursuant to Section 4.07(a)(3).


 


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


 


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


 


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


 


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


 


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


 


(c)           transfer
any of its properties or assets to the Issuer or any of its Subsidiaries;


 


except
for such encumbrances or restrictions existing under or by reason of:


 


59

















 


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


 


(ii)           applicable law or
regulation;


 


(iii)          any instrument
governing Acquired Debt as in effect at the time of acquisition (except to the
extent such Indebtedness was incurred in connection with, or in contemplation
of, such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired;


 


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


 


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


 


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


 


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


 


(viii)        Permitted Liens;


 


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


 


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


 


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


 


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


 


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(xiii)         Non-Recourse
Receivables Subsidiary Indebtedness or other contractual requirements of a
Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only
to such Receivables Subsidiary or the receivables and related assets described
in the definition of Qualified Receivables Transaction which are subject to
such Qualified Receivables Transaction;


 


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


 


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


 


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


 


SECTION 4.09.                                              Limitation
on Incurrence of Indebtedness.


 


(a)           The Issuer shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with
respect to (collectively, “incur”)
any Indebtedness (including Acquired Debt) or permit any of its Restricted
Subsidiaries to issue any Preferred Equity Interests; provided, however,
that, notwithstanding the foregoing, the Issuer and any Guarantor may incur
Indebtedness (including Acquired Debt) and any Guarantor may issue Preferred
Equity Interests if, after giving effect to the incurrence of such Indebtedness
or the issuance of such Preferred Equity Interests and the application of the
net proceeds thereof on a pro forma basis, (i) the Issuer’s Consolidated
Fixed Charge Coverage Ratio would have been at least 2.0 to 1.0 and (ii) the
Issuer’s Consolidated Senior Indebtedness Leverage Ratio would have been no greater
than 3.5 to 1.0.


 


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


 


(1)           Indebtedness
represented by the Notes (and any Exchange Notes issued in exchange therefor)
and the Guarantees in an aggregate principal amount not to exceed
$240 million;


 


(2)           Indebtedness
of the Issuer or any Restricted Subsidiary under any Credit Facility in an
aggregate principal amount at any time outstanding not to exceed the excess of (x) $375 million
over (y) the sum of (A) the aggregate principal amount of


 


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Indebtedness under the Credit Facilities permanently repaid pursuant to
clause (1) of the second paragraph of Section 4.10 and (B) the
Outstanding Receivables Amount at such time;


 


(3)           (x) Indebtedness
among the Issuer and its Restricted Subsidiaries; provided that any such Indebtedness owed by the Issuer or a
Guarantor to any Restricted Subsidiary that is not a Guarantor, shall be
subordinated to the prior payment in full of the Notes or the Guarantees, as
applicable, and (y) Preferred Equity Interests of a Restricted Subsidiary
held by the Issuer or a Restricted Subsidiary; provided
that if such Preferred Equity Interests are issued by a Guarantor, such
Preferred Equity Interests are held by the Issuer or a Guarantor;


 


(4)           Acquired
Debt of a Person incurred prior to the date upon which such Person was acquired
by the Issuer or any Restricted Subsidiary (and not created in contemplation of
such acquisition); provided that (x) the
aggregate principal amount of Acquired Debt pursuant to this clause (4)(x) (when
aggregated with the amount of Refinancing Indebtedness outstanding under
clause (10) below in respect of Indebtedness incurred pursuant to
this clause (4)(x)) shall not exceed $35 million outstanding at any
time or (y) after giving effect to the incurrence of such Acquired Debt on
a pro forma basis, the Issuer’s Consolidated Fixed Charge Coverage Ratio would
have been at least 2.0 to 1.0;


 


(5)           Existing
Indebtedness;


 


(6)           Indebtedness
consisting of Purchase Money Indebtedness in an aggregate amount (when
aggregated with the amount of Refinancing Indebtedness outstanding under
clause (10) below in respect of Indebtedness incurred pursuant to
this clause (6)) not to exceed the greater of (x) $50 million
and (y) 1.25% of Consolidated Total Assets outstanding at any time;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(11)          additional Indebtedness in an aggregate principal amount
not to exceed the greater of (x) $50 million and (y) 1.25% of
Consolidated Total Assets at any one time outstanding;


 


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


 


(13)          Non-Recourse Receivables Subsidiary Indebtedness (as
defined in the definition of “Receivables Subsidiary”) incurred by any
Receivables Subsidiary in a Qualified Receivables Transaction; provided that the aggregate Outstanding
Receivables Amount at any time, when aggregated with the amount of Indebtedness
outstanding in reliance on clause (b)(2) above at such time, shall
not exceed $375 million;


 


63

















 


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


 


(15)          the incurrence by the Issuer or its Subsidiaries of
guarantees in respect of obligations of joint ventures; provided that the aggregate principal
amount of Indebtedness incurred pursuant to this clause (15) shall not
exceed $25 million outstanding at any time;


 


(16)          Indebtedness of Foreign Subsidiaries in an aggregate
principal amount not to exceed $15 million at any time outstanding;


 


(17)          overdrafts paid within 5 Business Days;


 


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


 


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


 


(c)           For purposes of determining compliance with this Section 4.09,
(1) the outstanding principal amount of any item of Indebtedness shall be
counted only once, and any obligation arising under any guarantee, Lien, letter
of credit or similar instrument supporting such Indebtedness incurred in
compliance with this Section 4.09 shall be disregarded, and (2) if an
item of Indebtedness meets the criteria of more than one of the categories
described in clauses (b)(1) through (19) above or is permitted to be
incurred pursuant to Section 4.09(a) and also meets the criteria of
one or more of the categories described in clauses (b)(1) through (19) of
this Section 4.09, the Issuer shall, in its sole discretion, classify such
item of Indebtedness in any manner that complies with this Section 4.09
and may from time to time reclassify such item of Indebtedness in any manner in
which such item could be incurred at the time of such reclassification; provided that Indebtedness outstanding
under the Credit Agreement on the Issue Date or on the date of the Release, as
applicable (and any Indebtedness secured by a Lien that refinances such
Indebtedness) shall be deemed to be outstanding under paragraph (b)(2) above
and may not be reclassified.


 


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


 


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


 


(f)         For
purposes of determining compliance with any U.S. dollar-denominated restriction
on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount
of Indebtedness denominated in a foreign currency shall be calculated by the
Issuer based on the relevant currency exchange rate in effect on the date such
Indebtedness was incurred, in the case of term Indebtedness, or first
committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is
incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable U.S. dollar-dominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect
on the date of such refinancing, such U.S. dollar-dominated restriction shall
be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced. 
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that the Issuer may incur pursuant to this Section 4.09
shall not be deemed to be exceeded solely as a result of fluctuations in the
exchange rate of currencies.  The
principal amount of any Indebtedness incurred to refinance other Indebtedness,
if incurred in a different currency from the Indebtedness being refinanced,
shall be calculated based on the currency exchange rate applicable to the
currencies in which such Refinancing Indebtedness is denominated that is in
effect on the date of such refinancing.


 


SECTION 4.10.                                              Limitation
on Asset Sales.


 


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


 


(1)           the Issuer or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the fair market
value (determined as of the time of contractually agreeing to such Asset Sale)
of the assets included in such Asset Sale (such fair market value to be
determined by (i) an executive officer of the Issuer or such Subsidiary if
the value is less than $25 million or (ii) in all other cases by a
resolution of the Issuer’s Board of Directors (or of a committee appointed
thereby for such purposes));


 


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


 


65

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 4.11.                                              Limitation
on Transactions with Affiliates.


 


The Issuer shall not and shall not permit any
Restricted Subsidiary to, directly or indirectly, sell, lease, transfer or
otherwise dispose of any of the Issuer’s or any Restricted Subsidiary’s
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any


 


66

















 


Affiliate
(including any Unrestricted Subsidiary) (each of the foregoing, an “Affiliate Transaction”), unless:


 


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


 


(b)           if
such Affiliate Transaction involves aggregate payments in excess of the greater
of (A) $25.0 million and (B) 0.75% of Consolidated Total Assets,
either (i) such Affiliate Transaction has been approved by a resolution of
the members of (x) the Issuer’s Board of Directors or (y) any duly
constituted committee thereof, in each case including a majority of the
disinterested members thereof who meet the independence requirements of the New
York Stock Exchange or NASDAQ or (ii) if there are no disinterested
directors on the Issuer’s Board of Directors, the Issuer or such Restricted
Subsidiary has obtained the favorable opinion of an Independent Financial
Advisor as to the fairness of such Affiliate Transaction to the Issuer or the
relevant Restricted Subsidiary, as the case may be, from a financial point of
view;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)          the Transactions;


 


(ix)          transactions effected as part of a Qualified
Receivables Transaction; and


 


(x)          Specified Affiliate Payments.


 


SECTION 4.12.      Limitation on Liens.


 


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


 


SECTION 4.13.      Additional Subsidiary
Guarantees.


 


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


 


68

















 


Restricted
Subsidiary shall not be required to execute such a supplemental indenture until
it is permitted to issue such Guarantee pursuant to the terms of such Acquired
Debt.


 


SECTION 4.14.      Organizational
Existence.


 


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


 


SECTION 4.15.      Change
of Control.


 


Upon
the occurrence of a Change of Control, the Issuer shall make an offer (a “Change of Control Offer”) to each Holder
of Notes to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount thereof, together with accrued and unpaid interest
thereon to the date of repurchase (subject to the rights of holders of record
of the Notes on the relevant record date to receive payments of interest on the
related interest payment date) (in either case, the “Change of Control Payment”). 
Within 30 days following any Change of Control, the Issuer shall mail a
notice to each Holder with a copy to the Trustee stating:


 


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


 


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


 


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


 


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


 


(5)        that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter


 


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setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is unconditionally
withdrawing its election to have such Notes purchased;


 


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


 


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


 


The
Issuer will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Notes required in the event of a Change of Control. The Issuer will not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture
applicable to Change of Control Offer made by the Issuer.  The Issuer’s obligations in respect of a
Change of Control Offer can be modified with the consent of holders of a
majority of the aggregate principal amount of Notes then outstanding at any
time prior to the occurrence of a Change of Control.  Notwithstanding anything to the contrary
herein, a Change of Control Offer may be made in advance of a Change of
Control, conditional upon such Change of Control, if a definitive agreement is
in place for the Change of Control at the time of making of the Change of
Control Offer.


 


SECTION 4.16.      [Intentionally
Omitted]


 


SECTION 4.17.      [Intentionally
Omitted].


 


SECTION 4.18.      Payments
for Consent.


 


The
Issuer shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of
any Holder of Notes for or as an inducement to any consent, waiver or amendment
of any of the terms or provisions hereof or the Notes unless such consideration
is offered to be paid and is paid to all Holders of the Notes that are either
Qualified Institutional Buyers (as defined in Rule 144A of the Securities
Act) or that are located outside of the United States and, in each case, that
consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


SECTION 4.19.      Suspension of Covenants.


 


During
any period of time after the Issue Date that (i) the Notes are rated
Investment Grade by both Rating Agencies and (ii) no Default has occurred
and is continuing under this Indenture (the occurrence of the events described
in the foregoing clauses (i) and (ii) being


 


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collectively
referred to as a “Covenant Suspension Event”),
the Issuer and its Restricted Subsidiaries will not be subject to the following
Sections (the “Suspended Covenants”):


 


(1)       Section 3.08;


 


(2)       Section 4.07;


 


(3)       Section 4.08;


 


(4)       Section 4.09;


 


(5)       Section 4.10;


 


(6)       Section 4.11; and


 


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


 


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


 


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


 


On
each Reversion Date, all Indebtedness incurred during the Suspension Period
prior to such Reversion Date will be deemed to be Existing Indebtedness.  For purposes of calculating the amount
available to be made as Restricted Payments under clause (3) of Section 4.07(a),
calculations under such section shall be made as though such section had been
in effect during the entire period of time after the Issue Date (including the
Suspension Period).  Restricted Payments
made during the Suspension Period not otherwise permitted pursuant to any of
clauses (2) through (9) of Section 4.07(b) will reduce
the amount available to be made as Restricted Payments under clause (3) of
Section 4.07(a),  provided that the amount available to be
made as Restricted Payments on the Reversion Date shall not be reduced to below
zero solely as a result of such Restricted Payments.  For purposes of Section 3.08, on the
Reversion Date, the unutilized amount of Net Proceeds will be reset to
zero.  Notwithstanding the foregoing,
neither (a) the continued existence, after the Reversion Date, of facts
and circumstances or obligations that were incurred or otherwise came into
existence during a Suspension Period nor (b) the performance of any such
obligations, shall constitute a breach of any covenant set forth herein or
cause a Default or Event of Default thereunder; provided that (1) the Issuer and its Restricted
Subsidiaries did not incur or otherwise cause such facts and circumstances or
obligations to exist in anticipation of a withdrawal or downgrade by the
applicable


 


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Rating
Agency below an Investment Grade Rating and (2) the Issuer reasonably
believed that such incurrence or actions would not result in such withdrawal or
downgrade.


 


SECTION 4.20.      Escrow
of Proceeds; Release.


 


(a)       Concurrently with the
closing of the offering of the Initial Notes, the Issuer shall enter into an
escrow agreement (the “Escrow Agreement”)
with the Trustee and The Bank of New York Mellon, as escrow agent (the “Escrow Agent”), pursuant to which the
Issuer will deposit with the Escrow Agent for the benefit of the Trustee an
amount equal to the net proceeds of the offering of the Initial Notes sold on
the Issue Date and an additional amount in cash, cash equivalents (as defined
in the Escrow Agreement) or treasury securities (as defined in the Escrow
Agreement) (collectively, with any other property from time to time held by the
Escrow Agent, the “Escrowed Property”)
sufficient as certified by the Issuer in an Officer’s Certificate to redeem the
Initial Notes in cash at a redemption price equal to 100% the principal amount
of the Initial Notes, plus accrued and unpaid interest on the Initial Notes to October 14,
2008 (the “Special Mandatory Redemption
Amount”).  All interest earned
on the Escrowed Property shall be paid to the Issuer upon the Issuer’s request,
subject to the Issuer’s obligation to maintain in the escrow account at all
times prior to the Release an amount equal to the Special Mandatory Redemption
Amount.


 


(b)      The Escrowed Property
shall be released to the Issuer (the “Release”)
promptly upon the satisfaction of the conditions set forth in the Escrow
Agreement.  Upon the Release, the escrow
account under the Escrow Agreement shall be reduced to zero and the Escrowed
Property and interest thereon paid out in accordance with the Escrow Agreement.


 


(c)       From the Issue Date
until the Release, the Trustee shall, for the benefit of the Holders of the
Notes, be granted an exclusive first priority Lien on the Escrowed
Property.  Upon the Release, the Lien of
the Trustee on the Escrowed Property shall be extinguished.


 


(d)      The “Deadline” is September 30, 2008, or
such earlier date as the Issuer shall notify the Trustee in writing of IAC’s
announcement that it will not pursue the consummation of the Spin-Off.


 


ARTICLE
5


 


SUCCESSORS


 


SECTION 5.01.      Merger,
Consolidation or Sale of Assets.


 


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


 


(a)        the Issuer is the
surviving Person or the Person formed by or surviving any such consolidation or
merger (if other than the Issuer) or to which such sale, assignment,


 


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transfer,
lease, conveyance or other disposition shall have been made is a corporation,
limited partnership or limited liability company organized or existing under
the laws of the United States, any state thereof or the District of Columbia; provided, however,
that if the surviving Person is a limited liability company or limited
partnership, such entity shall also form a co-issuer that is a corporation;


 


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


 


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


 


(d)        the Issuer or the
Person formed by or surviving any such consolidation or merger (if other than
the Issuer) or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made:


 


(i)         will have a Consolidated Fixed Charge Coverage Ratio
immediately after the transaction (but prior to any purchase accounting
adjustments or accrual of deferred tax liabilities resulting from the
transaction) not less than the Issuer’s Consolidated Fixed Charge Coverage
Ratio immediately preceding the transaction; or


 


(ii)        would, at the time of such transaction after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, have a Consolidated Fixed Charge Coverage Ratio
equal to at least 2.0 to 1.0.


 


Notwithstanding
the foregoing clause (d):


 


(1)        any Restricted Subsidiary may consolidate with or merge into
or transfer all or part of its properties and assets to the Issuer or another
Restricted Subsidiary;


 


(2)        the Issuer may complete the Transactions; and


 


(3)        the Issuer may merge with a Restricted Subsidiary solely for
the purpose of reorganizing the Issuer in another jurisdiction of the United
States so long as the amount of Indebtedness of the Issuer and the Restricted
Subsidiary is not increased thereby.


 


SECTION 5.02.      Successor
Corporation Substituted.


 


Upon
any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Issuer in
accordance with Section 5.01 hereof, the


 


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


 


ARTICLE
6


 


DEFAULTS
AND REMEDIES


 


SECTION 6.01.      Events
of Default.


 


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


 


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


 


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


 


(c)        failure to comply with
the provisions of Section 3.08 or Section 5.01 hereof;


 


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


 


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


 


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


 


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such
Indebtedness under which there has been a Payment Default, aggregates $25
million or more;


 


(g)        default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Issuer and any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries), other than
Non-Recourse Receivables Subsidiary Indebtedness, which default results in the
acceleration of such Indebtedness prior to its express maturity not rescinded
or cured within 30 days after such acceleration, and the principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated and remains undischarged after such 30 day
period, aggregates $25 million or more;


 


(h)        failure by the Issuer
and any of its Restricted Subsidiaries to pay final judgments (other than any
judgment as to which a reputable insurance company has accepted full liability)
aggregating $25 million or more, which judgments are not stayed within 60 days
after their entry other than judgments in respect of Non-Recourse Receivables
Subsidiary Indebtedness;


 


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


 


(j)         the Issuer or any
Significant Subsidiary of the Issuer pursuant to or within the meaning of
Bankruptcy Law (i) commences a voluntary case; (ii) consents to the
entry of an order for relief against it in an involuntary case; (iii) consents
to the appointment of a custodian of it or for all or substantially all of its
property; or (iv) makes a general assignment for the benefit of its
creditors;


 


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


 


(l)         failure by the Issuer
(or any parent company of the Issuer) to consummate the Special Mandatory
Redemption, if applicable.


 


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SECTION 6.02.      Acceleration.


 


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


 


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


 


SECTION 6.03.      Other Remedies.


 


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


 


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


 


SECTION 6.04.      Waiver
of Past Defaults.


 


Holders
of not less than a majority in aggregate principal amount of Notes then
outstanding, by written notice to the Trustee, may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences under this Indenture, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on,
the Notes.  Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose hereof; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


SECTION 6.05.      Control
by Majority.


 


Holders
of a majority in principal amount of the then outstanding Notes may direct the
time, method and place of conducting any proceeding for exercising any remedy
available to


 


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the
Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with the law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.


 


SECTION 6.06.      Limitation
on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Notwithstanding
any other provision hereof, the right of any Holder of a Note to receive
payment of principal, premium, if any, and interest on the Note, on or after
the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder of the Note.


 


SECTION 6.08.      Collection
Suit by Trustee.


 


If
an Event of Default specified in Section 6.01(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Issuer for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the
Notes and interest on overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of
collection,


 


77

















 


including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


SECTION 6.09.      Trustee
May File Proofs of Claim.


 


The
Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Issuer
(or any other obligor upon the Notes), the Issuer’s creditors or the Issuer’s
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
of a Note to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
the Notes, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07
hereof.  To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties which the Holders of the Notes may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise.  Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Note any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder of a Note thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder of a Note in any such proceeding.


 


SECTION 6.10.      Priorities.


 


If
the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:


 


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


 


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


 


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


 


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


 


SECTION 6.11.             Undertaking
for Costs.


 


In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken
or omitted by it as a Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant.  This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes pursuant to this Article 6.


 


ARTICLE 7


 


TRUSTEE


 


SECTION 7.01.             Duties of Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


(ii)     the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and


 


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


 


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


 


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


 


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


 


SECTION 7.02.             Rights of Trustee.


 


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


 


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


 


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


 


(d)                                                   The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 7.03.             Individual Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the Issuer
or any Affiliate of the Issuer with the same rights it would have if it were
not Trustee.  However, in the event that
the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as Trustee
(if any of the Notes are registered pursuant to the Securities Act), or
resign.  Any Agent may do the same with
like rights and duties.  The Trustee is
also subject to Sections 7.10 and 7.11 hereof.


 


SECTION 7.04.             Trustee’s Disclaimer.


 


(a)           The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy hereof or the Notes, it shall not
be accountable for the Issuer’s use of the proceeds from the Notes or any money
paid to the Issuer or upon the Issuer’s direction under any provision hereof,
it shall not be responsible for the use or application of any money received


 


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by any Paying Agent other than the Trustee, and it
shall not be responsible for any statement or recital herein or any statement
in the Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.


 


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


 


SECTION 7.05.             Notice
of Defaults.


 


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


 


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


 


Within 60 days after each May 15 beginning with
May 15, 2009, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA § 313(a) (but
if no event described in TIA § 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA §
313(b).  The Trustee shall also transmit
by mail all reports as required by TIA § 313(c).


 


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


 


SECTION 7.07.             Compensation
and Indemnity.


 


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


 


The Issuer shall indemnify the Trustee against any
and all losses, liabilities, claims, damages or expenses incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, except any such loss, liability or expense as


 


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shall
be determined to have been caused by the negligence or willful misconduct of
the Trustee.  The Trustee shall notify
the Issuer promptly of any claim of which a Responsible Officer has received
written notice for which it may seek indemnity. 
Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder.  The
Issuer shall defend the claim and the Trustee shall cooperate in the
defense.  The Trustee may have separate
counsel and the Issuer shall pay the reasonable fees and expenses of such
counsel.  The Issuer need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.


 


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


 


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


 


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


 


SECTION 7.08.             Replacement
of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(d)           the
Trustee becomes incapable of acting.


 


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


 


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Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Issuer.


 


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


 


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


 


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


 


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


 


SECTION 7.09.             Successor Trustee by Merger, Etc.


 


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


 


SECTION 7.10.             Eligibility; Disqualification.


 


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


 


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


 


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SECTION 7.11.             Preferential Collection of Claims
Against the Issuer.


 


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


 


ARTICLE 8


 


DISCHARGE OF INDENTURE; DEFEASANCE


 


SECTION 8.01.             Termination of the Issuer’s
Obligations.


 


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


 


(1)       either


 


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


 


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


 


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


 


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


 


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


 


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


 


The Issuer may, at the option of its Board of
Directors evidenced by a resolution set forth in an Officers’ Certificate, at
any time, with respect to the Notes, elect to have either Section 8.03 or
8.04 hereof applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.


 


SECTION 8.03.             Legal
Defeasance and Covenant Discharge.


 


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


 


SECTION 8.04.             Covenant Defeasance.


 


Upon the Issuer’s exercise under Section 8.02
hereof of the option applicable to this Section 8.04, the Issuer shall be
released from its obligations under the covenants contained in Sections 3.08,
4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 (other than
existence of the Issuer (subject to Section 5.01)), 4.15, 5.01 (except
clauses (a) and (b) and 10.03 hereof with respect to the outstanding
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”),
and the Notes shall thereafter be deemed not “outstanding” for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for GAAP).  For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Notes, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute


 


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a
Default or an Event of Default under Section 6.01(c) hereof, but,
except as specified above, the remainder hereof and such Notes shall be
unaffected thereby.  In addition, upon
the Issuer’s exercise under Section 8.02 hereof of the option applicable
to this Section 8.04, Sections 6.01(c) through 6.01(h) shall not
constitute Events of Default.


 


SECTION 8.05.             Conditions to Legal or Covenant
Defeasance.


 


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


 


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


 


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


 


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


 


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


 


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


 


vi.           the Issuer shall have delivered to the Trustee an Officers’ Certificate
stating that the deposit made by the Issuer pursuant to its election under Section 8.03
and 8.04 hereof was not made by the Issuer with the intent of preferring the
Holders of the Notes over


 


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any of its other creditors
or with the intent of defeating, hindering, delaying or defrauding any of its
other creditors or others; and


 


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


 


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


 


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


 


The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
Government Securities deposited pursuant to Section 8.05 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.


 


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


 


SECTION 8.07.             Repayment to the Issuer.


 


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


 


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fore
being required to make any such repayment, may at the expense of the Issuer
cause to be published once, in The New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.


 


SECTION 8.08.             Reinstatement.


 


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


 


ARTICLE 9


 


AMENDMENT, SUPPLEMENT AND WAIVER


 


SECTION 9.01.             Without Consent of Holders of Notes.


 


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


 


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


 


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


 


(c)           to
provide for the assumption of the obligations of the Issuer or any Guarantor to
the Holders of the Notes in the case of a merger or consolidation or sale of
all or substantially all of the Issuer’s assets or such Guarantor’s assets
pursuant to Article 5 or Article 10 hereof;


 


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


 


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


 


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


 


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


 


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


 


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


 


The
Issuer’s obligations in respect of Change of Control Offer can be modified with
the consent of the holders of a majority in aggregate principal amount of the
Notes then outstanding at any time prior to the occurrence of a Change of
Control.  The consent of the noteholders
is not necessary under this Indenture to approve the particular form of any
proposed amendment.  It is sufficient if
such consent approves the substance of the proposed amendment.


 


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


 


SECTION 9.02.      With
Consent of Holders of Notes.


 


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


 


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


 


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


 


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


 


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


 


(e)           make any Note payable in money other than
that stated in the Notes;


 


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


 


(g)           make any change to the provisions of this
Indenture providing for the Special Mandatory Redemption that would adversely
affect the rights of any of the Holders of the Notes to receive the Special
Mandatory Redemption Amount,


 


(h)           waive a redemption payment or mandatory
redemption with respect to any Note (other than as provided in clause (i) below);


 


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


 


(j)            release all or substantially all of the
Guarantees or the Guarantors other than in accordance with Section 10.05
below; or


 


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


 


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


 


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


 


After
an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Issuer shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver.  Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Issuer with
any provision of this Indenture or of the Notes.


 


SECTION 9.03.      Compliance
with Trust Indenture Act.


 


Every
amendment or supplement to this Indenture and the Notes shall be set forth in
an amended or supplemental indenture that complies with the TIA as then in
effect.


 


SECTION 9.04.      Revocation
and Effect of Consents.


 


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


 


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


 


SECTION 9.05.      Notation
on or Exchange of Notes.


 


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


 


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


 


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SECTION 9.06.      Trustee To Sign
Amendments, Etc.


 


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


 


ARTICLE
10



GUARANTEES


 


SECTION 10.01.    Guarantee.


 


Each
of the Guarantors, jointly and severally, hereby unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the Obligations of the Issuer
hereunder or thereunder, that


 


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


 


(b)           in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or
otherwise.  Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
each of the Guarantors, jointly and severally, will be obligated to pay the
same immediately.


 


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


 


Each of
the Guarantors, jointly and severally, hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
Obligations guaranteed hereby.  If any Holder
or the Trustee is


 


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required by any court or
otherwise, or any custodian, Trustee, liquidator or other similar official
acting in relation to either the Issuer or any Guarantor, to return to the
Issuer or any Guarantor any amount paid by either to the Trustee or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.


 


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


 


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


 


Nothing
in this Section 10.01 shall apply to claims of, or payments to, the
Trustee under or pursuant to the provisions of Section 7.07 hereof.  Nothing contained in this Section 10.01
or elsewhere in this Indenture, the Notes or the Guarantees shall impair, as
between any Guarantor and the Holder of any Note, the obligation of such
Guarantor, which is unconditional and absolute, to pay to the Holder thereof
the principal of, premium, if any, and interest on such Note in accordance with
its terms and the terms of the Guarantee and this Indenture, nor shall anything
herein or therein prevent the Trustee or the Holder of any Note from exercising
all remedies otherwise permitted by applicable law or hereunder or thereunder
upon the occurrence of an Event of Default.


 


SECTION 10.02.    Execution
and Delivery of Guarantees.


 


To
evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form of Exhibit B
hereto shall be endorsed by an officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by any of its Officers.  Each of the Guarantors, jointly and
severally, hereby agrees that its Guarantee set forth in Section 10.01
hereof shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.  If an officer or Officer whose signature is


 


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on this Indenture or on
the Guarantee of a Guarantor no longer holds that office at the time the
Trustee authenticates the Note on which the Guarantee of such Guarantor is
endorsed, the Guarantee of such Guarantor shall be valid nevertheless.  The delivery of any Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
the Guarantees set forth in this Indenture on behalf of the Guarantors.


 


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


 


Subject
to Section 10.05 hereof, a Guarantor may not, and the Issuer will not
cause or permit any Guarantor to, consolidate or merge with or into (whether or
not such Guarantor is the surviving entity) another Person other than the
Issuer or another Guarantor (in each case other than in accordance with Section 4.10)
unless:


 


(a)           such Guarantor is the surviving Person or
the Person formed by or surviving any such consolidation or merger (if other
than such Guarantor) is a corporation, limited partnership or limited liability
company organized or existing under the laws of the United States, any state
thereof or the District of Columbia;


 


(b)           the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor, pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, under the Notes and this Indenture; and


 


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


 


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


 


SECTION 10.04.    Successor
Corporation Substituted.


 


Upon
any consolidation, merger, sale or conveyance described in paragraphs (a) through
(c) of Section 10.03 hereof, and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of any Guarantee previously signed by the
Guarantor and the due and punctual performance of all of the covenants and
conditions hereof to be performed by the Guarantor, such successor Person shall
succeed to and be substituted for the Guarantor with the same effect as if it
had been named herein as a Guarantor. 
Such successor Person thereupon may


 


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cause to be signed any or
all of the Guarantees to be issuable hereunder by such Guarantor and delivered
to the Trustee.  All the Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance
with the terms hereof as though all of such Guarantees had been issued at the
date of the execution of such Guarantee by such Guarantor.  When a successor Person assumes all the
obligations of the Issuer under the Notes and the Indenture pursuant to this Article 5,
the applicable predecessor shall be released from the obligations so assumed.


 


SECTION 10.05.    Releases
from Guarantees.


 


If
pursuant to any direct or indirect sale of assets (including, if applicable,
all of the Capital Stock of any Guarantor) or other disposition by way of
merger, consolidation or otherwise, the assets sold include all or
substantially all of the assets of any Guarantor or all of the Capital Stock of
any such Guarantor, then such Guarantor or the Person acquiring the property
(in the event of a sale or other disposition of all or substantially all of the
assets of such a Guarantor) shall be released and relieved of its obligations
under its Guarantee or Section 10.03 and Section 10.04 hereof, as the
case may be; provided that in the
event of an Asset Sale, the Net Proceeds from such sale or other disposition
are applied in accordance with the provisions of Section 4.10 hereof.  In addition, a Guarantor shall be released
and relieved of its obligations under its Guarantee or Section 10.03 and Section 10.04
hereof, as the case may be if (1) such Guarantor is dissolved or liquidated in
accordance with the provisions hereof; (2) the Issuer designates any such
Guarantor as an Unrestricted Subsidiary in compliance with the terms hereof; or
(3) the Issuer effectively discharges such Guarantor’s obligations or
defeases the Notes in compliance with the terms of Article 8 hereof.  Upon delivery by the Issuer to the Trustee of
an Officers’ Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Issuer in accordance with the provisions
hereof, including without limitation Section 4.10 hereof, if applicable,
the Trustee shall execute any documents pursuant to written direction of the
Issuer in order to evidence the release of any such Guarantor from its
obligations under its Guarantee.  Any
such Guarantor not released from its obligations under its Guarantee shall
remain liable for the full amount of principal of and interest on the Notes and
for the other obligations of such Guarantor under this Indenture as provided in
this Article 10.


 


ARTICLE
11



MISCELLANEOUS


 


SECTION 11.01.    Trust
Indenture Act Controls.


 


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


 


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SECTION 11.02.    Notices.


 


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


 


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



HSN, Inc. 

1 HSN Drive 

St. Petersburg, FL 33729

Facsimile No.:  (727) 872-6866

Attention:  General Counsel


 


If to the Trustee:



The Bank of New York Mellon

101 Barclay Street

Floor 8W

New York, New York 10286

Facsimile No.:  212-815-5704

Attn:  Corporate Trust Administration


 


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


 


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


 


Any
notice or communication to a Holder of a Note shall be mailed by first class
mail to its address shown on the register kept by the Registrar.  Any notice or communication shall also be so
mailed to any Person described in TIA § 313(c), to the extent required by the
TIA.  Failure to mail a notice or
communication to a Holder of a Note or any defect in it shall not affect its
sufficiency with respect to other Holders of Notes.


 


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


 


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


 


The
Trustee agrees to accept and act upon facsimile and electronic mail
transmission of written instructions and/or directions pursuant to this
Indenture given by the Issuer; provided,
however that: (i) the
Issuer, subsequent to such facsimile or electronic mail transmission of written
instructions and/or directions shall provide the originally executed
instructions


 


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and/or directions to the
Trustee in a timely manner and (ii) such originally executed instructions
and/or directions shall be signed by an authorized “Officer” of the Issuer.


 


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


 


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


 


SECTION 11.04.    Certificate
and Opinion as to Conditions Precedent.


 


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


 


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


 


(b)           an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been
satisfied.


 


SECTION 11.05.    Statements
Required in Certificate or Opinion.


 


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4), if applicable) shall include:


 


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


 


(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.


 


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SECTION 11.06.    Rules by
Trustee and Agents.


 


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


 


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


 


No
director, owner, officer, employee, incorporator or stockholder of the Issuer,
the Guarantors or any of their Affiliates, as such, shall have any liability
for any obligations of the Issuer, the Guarantors or any of their Affiliates
under the Notes, the Guarantees or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder of the Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.


 


SECTION 11.08.    Governing Law.


 


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


 


SECTION 11.09.    No
Adverse Interpretation of Other Agreements.


 


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


 


SECTION 11.10.    Successors.


 


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


 


SECTION 11.11.    Severability.


 


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


 


SECTION 11.12.    Counterpart
Originals.


 


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


 


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SECTION 11.13.    Table
of Contents, Headings, Etc.


 


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


 


SECTION 11.14.    Force Majeure.


 


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


 


SECTION 11.15.    Waiver
of Jury Trial.


 


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


 


[Signatures on following page]


 


100

















 


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


 


	
   

  	
  HSN, INC.,

  
	
   

  	
  as the Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory R.
  Blatt

  
	
   

  	
   

  	
  Name:    Gregory R. Blatt

  
	
   

  	
   

  	
  Title:      Vice President and Assistant

  
	
   

  	
   

  	
                 Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK MELLON,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sherma
  Thomas

  
	
   

  	
   

  	
  Name:    Sherma Thomas

  
	
   

  	
   

  	
  Title:      Assistant Treasurer

  



 


101