Exhibit 10.21


 


EXECUTION COPY


 


 


TICKETMASTER



10.75% 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)

  	
   

  	
  7.06;
  7.07

  
	
  (c)

  	
   

  	
  7.06;
  11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03(a);
  11.05

  
	
  (4)

  	
   

  	
  4.04;
  11.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  11.04;
  11.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01(b);
  7.02

  
	
  (b)

  	
   

  	
  7.05;
  11.02

  
	
  (c)

  	
   

  	
  7.01(a)

  
	
  (d)

  	
   

  	
  7.01(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last
  sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.13

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  11.01

  
	
  (c)

  	
   

  	
  11.01

  



 






N.A.
means Not Applicable.


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


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions.

  	
  1

  
	
  SECTION 1.02.

  	
  Other
  Definitions.

  	
  22

  
	
  SECTION 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act.

  	
  23

  
	
  SECTION 1.04.

  	
  Rules of
  Construction.

  	
  24

  
	
  SECTION 1.05.

  	
  Acts
  of Holders; Record Dates.

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  	
   

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and
  Dating.

  	
  25

  
	
  SECTION 2.02.

  	
  Form of
  Execution and Authentication.

  	
  27

  
	
  SECTION 2.03.

  	
  Registrar
  and Paying Agent.

  	
  28

  
	
  SECTION 2.04.

  	
  Paying
  Agent To Hold Money in Trust.

  	
  29

  
	
  SECTION 2.05.

  	
  Lists
  of Holders of the Notes.

  	
  29

  
	
  SECTION 2.06.

  	
  Transfer
  and Exchange.

  	
  29

  
	
  SECTION 2.07.

  	
  Replacement
  Notes.

  	
  40

  
	
  SECTION 2.08.

  	
  Outstanding
  Notes.

  	
  40

  
	
  SECTION 2.09.

  	
  Treasury
  Notes.

  	
  41

  
	
  SECTION 2.10.

  	
  Temporary
  Notes.

  	
  41

  
	
  SECTION 2.11.

  	
  Cancellation.

  	
  41

  
	
  SECTION 2.12.

  	
  Defaulted
  Interest.

  	
  41

  
	
  SECTION 2.13.

  	
  Record
  Date.

  	
  42

  
	
  SECTION 2.14.

  	
  CUSIP
  Number.

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
   

  
	
  REDEMPTION

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Notices
  to Trustee.

  	
  42

  
	
  SECTION 3.02.

  	
  Selection
  of Notes To Be Redeemed.

  	
  42

  
	
  SECTION 3.03.

  	
  Notice
  of Redemption.

  	
  43

  
	
  SECTION 3.04.

  	
  Effect
  of Notice of Redemption.

  	
  44

  
	
  SECTION 3.05.

  	
  Deposit
  of Redemption Price.

  	
  44

  
	
  SECTION 3.06.

  	
  Notes
  Redeemed in Part.

  	
  44

  
	
  SECTION 3.07.

  	
  Optional
  Redemption.

  	
  44

  
	
  SECTION 3.08.

  	
  Excess
  Proceeds Offer.

  	
  45

  
	
  SECTION 3.09.

  	
  Special
  Mandatory Redemption.

  	
  47

  
	
  SECTION 3.10.

  	
  Notice
  to Special Mandatory Redemption.

  	
  47

  



 


i

















 


 


	
   

  	
  Page

  
	
   

  
	
  ARTICLE 4

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment
  of Notes.

  	
  48

  
	
  SECTION 4.02.

  	
  Maintenance
  of Office or Agency.

  	
  48

  
	
  SECTION 4.03.

  	
  Reports.

  	
  48

  
	
  SECTION 4.04.

  	
  Compliance
  Certificate.

  	
  49

  
	
  SECTION 4.05.

  	
  Taxes.

  	
  49

  
	
  SECTION 4.06.

  	
  Stay,
  Extension and Usury Laws.

  	
  49

  
	
  SECTION 4.07.

  	
  Limitation
  on Restricted Payments.

  	
  50

  
	
  SECTION 4.08.

  	
  Limitation
  on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

  	
  53

  
	
  SECTION 4.09.

  	
  Limitation
  on Incurrence of Indebtedness.

  	
  54

  
	
  SECTION 4.10.

  	
  Limitation
  on Asset Sales.

  	
  58

  
	
  SECTION 4.11.

  	
  Limitation
  on Transactions with Affiliates.

  	
  59

  
	
  SECTION 4.12.

  	
  Limitation
  on Liens.

  	
  61

  
	
  SECTION 4.13.

  	
  Additional
  Subsidiary Guarantees.

  	
  61

  
	
  SECTION 4.14.

  	
  Organizational
  Existence.

  	
  61

  
	
  SECTION 4.15.

  	
  Change
  of Control.

  	
  62

  
	
  SECTION 4.16.

  	
  [Intentionally
  Omitted].

  	
  63

  
	
  SECTION 4.17.

  	
  [Intentionally
  Omitted].

  	
  63

  
	
  SECTION 4.18.

  	
  Payments
  for Consent.

  	
  63

  
	
  SECTION 4.19.

  	
  Suspension
  of Covenants.

  	
  63

  
	
  SECTION 4.20.

  	
  Escrow
  of Proceeds; Release.

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
   

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Merger,
  Consolidation or Sale of Assets.

  	
  65

  
	
  SECTION 5.02.

  	
  Successor
  Corporation Substituted.

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events
  of Default.

  	
  66

  
	
  SECTION 6.02.

  	
  Acceleration.

  	
  68

  
	
  SECTION 6.03.

  	
  Other
  Remedies.

  	
  68

  
	
  SECTION 6.04.

  	
  Waiver
  of Past Defaults.

  	
  68

  
	
  SECTION 6.05.

  	
  Control
  by Majority.

  	
  69

  
	
  SECTION 6.06.

  	
  Limitation
  on Suits.

  	
  69

  
	
  SECTION 6.07.

  	
  Rights
  of Holders of Notes To Receive Payment.

  	
  69

  
	
  SECTION 6.08.

  	
  Collection
  Suit by Trustee.

  	
  69

  
	
  SECTION 6.09.

  	
  Trustee
  May File Proofs of Claim.

  	
  70

  
	
  SECTION 6.10.

  	
  Priorities.

  	
  70

  



 


ii

















 


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11.

  	
  Undertaking
  for Costs.

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Duties
  of Trustee.

  	
  71

  
	
  SECTION 7.02.

  	
  Rights
  of Trustee.

  	
  72

  
	
  SECTION 7.03.

  	
  Individual
  Rights of Trustee.

  	
  73

  
	
  SECTION 7.04.

  	
  Trustee’s
  Disclaimer.

  	
  73

  
	
  SECTION 7.05.

  	
  Notice
  of Defaults.

  	
  73

  
	
  SECTION 7.06.

  	
  Reports
  by Trustee to Holders of the Notes.

  	
  74

  
	
  SECTION 7.07.

  	
  Compensation
  and Indemnity.

  	
  74

  
	
  SECTION 7.08.

  	
  Replacement
  of Trustee.

  	
  75

  
	
  SECTION 7.09.

  	
  Successor
  Trustee by Merger, Etc.

  	
  76

  
	
  SECTION 7.10.

  	
  Eligibility;
  Disqualification.

  	
  76

  
	
  SECTION 7.11.

  	
  Preferential
  Collection of Claims Against Issuer.

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  
	
  DISCHARGE OF INDENTURE; DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Termination
  of the Issuer’s Obligations.

  	
  76

  
	
  SECTION 8.02.

  	
  Option
  To Effect Legal Defeasance or Covenant Defeasance.

  	
  77

  
	
  SECTION 8.03.

  	
  Legal
  Defeasance and Covenant Discharge.

  	
  77

  
	
  SECTION 8.04.

  	
  Covenant
  Defeasance.

  	
  78

  
	
  SECTION 8.05.

  	
  Conditions
  to Legal or Covenant Defeasance.

  	
  78

  
	
  SECTION 8.06.

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

  	
  79

  
	
  SECTION 8.07.

  	
  Repayment
  to Issuer.

  	
  80

  
	
  SECTION 8.08.

  	
  Reinstatement.

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without
  Consent of Holders of Notes.

  	
  80

  
	
  SECTION 9.02.

  	
  With
  Consent of Holders of Notes.

  	
  81

  
	
  SECTION 9.03.

  	
  Compliance
  with Trust Indenture Act.

  	
  83

  
	
  SECTION 9.04.

  	
  Revocation
  and Effect of Consents.

  	
  83

  
	
  SECTION 9.05.

  	
  Notation
  on or Exchange of Notes.

  	
  83

  
	
  SECTION 9.06.

  	
  Trustee
  To Sign Amendments, Etc.

  	
  83

  



 


iii

















 


	
   

  	
  Page

  
	
   

  
	
  ARTICLE 10

  
	
   

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Guarantee.

  	
  84

  
	
  SECTION 10.02.

  	
  Execution
  and Delivery of Guarantees.

  	
  85

  
	
  SECTION 10.03.

  	
  Merger,
  Consolidation or Sale of Assets of Guarantors.

  	
  85

  
	
  SECTION 10.04.

  	
  Successor
  Corporation Substituted.

  	
  86

  
	
  SECTION 10.05.

  	
  Releases
  from Guarantees.

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Trust
  Indenture Act Controls.

  	
  87

  
	
  SECTION 11.02.

  	
  Notices.

  	
  87

  
	
  SECTION 11.03.

  	
  Communication
  by Holders of Notes with Other Holders of Notes.

  	
  88

  
	
  SECTION 11.04.

  	
  Certificate
  and Opinion as to Conditions Precedent.

  	
  88

  
	
  SECTION 11.05.

  	
  Statements
  Required in Certificate or Opinion.

  	
  89

  
	
  SECTION 11.06.

  	
  Rules by
  Trustee and Agents.

  	
  89

  
	
  SECTION 11.07.

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

  	
  89

  
	
  SECTION 11.08.

  	
  Governing
  Law.

  	
  90

  
	
  SECTION 11.09.

  	
  No
  Adverse Interpretation of Other Agreements.

  	
  90

  
	
  SECTION 11.10.

  	
  Successors.

  	
  90

  
	
  SECTION 11.11.

  	
  Severability.

  	
  90

  
	
  SECTION 11.12.

  	
  Counterpart
  Originals.

  	
  90

  
	
  SECTION 11.13.

  	
  Table
  of Contents, Headings, Etc.

  	
  90

  
	
  SECTION 11.14.

  	
  Force
  Majeure.

  	
  90

  
	
  SECTION 11.15.

  	
  Waiver
  of Jury Trial.

  	
  91

  



 


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 by and among Ticketmaster (the “Issuer”), a Delaware corporation, the
Guarantors (as hereinafter defined) and The Bank of New York Mellon, a New York
banking corporation, as trustee (the “Trustee”).


 


The
Issuer, the Guarantors and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Issuer’s
10.75% Senior Notes due 2016.


 


RECITALS


 


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


 


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


 


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


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.                                         Definitions.


 


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


 


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


 


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


 

















 


the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.


 


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


 


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


 


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


 


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


 


(a)                                  transfers of
cash or Cash Equivalents;


 


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


 


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


 


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


 


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


 


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


 


2














 


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


 


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


 


(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;


 


3

















 


(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 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 


 


4

















 


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;


 


(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 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:


 


(A)          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 


 


5

















 


(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


 


(B)           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 Costs 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.


 


“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.


 


6

















 


“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;


 


(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


 


7

















 


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


 


“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 Issuers 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, JPMorgan Chase Bank, 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 


 


8

















 


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.


 


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


 


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


 


“Domestic Cash
Amount” means the amount of unrestricted cash and Cash Equivalents
reflected in the bank statements of the Issuer and its Domestic Subsidiaries
immediately after giving effect to the Transactions, it being understood that
cash required to be remitted to customers representing the face amount of
tickets sold shall be deemed to be restricted.


 


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


 


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


 


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


 


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


 


9

















 


“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.


 


“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.


 


“Foreign Cash
Amount” means the amount of unrestricted cash and Cash Equivalents
reflected in the bank statements of the Issuer’s Foreign Subsidiaries
immediately after giving effect to the Transactions and, to the extent such
amount is repatriated, net of all applicable taxes in connection with such
repatriation, in an aggregate amount not to exceed $125.0 million, it
being understood that cash required to be remitted to customers representing
the face amount of tickets sold shall be deemed to be restricted.


 


“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 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.


 


10

















 


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


 


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


 


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


 


11














 


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


 


“Initial Notes” means the
$300,000,000 in aggregate principal amount of 10.75% Senior Notes due 2016 of
the Issuer issued under this Indenture on the Issue Date.


 


“Initial Purchasers” means,
with respect to the Initial Notes, J.P. Morgan Securities Inc.; Merrill Lynch,
Pierce, Fenner & Smith Incorporated; Banc of America Securities LLC;
Barclays Capital Inc.; Morgan Stanley & Co. Incorporated; Wachovia
Capital Markets, LLC; Scotia Capital (USA) Inc.; Greenwich Capital Markets, Inc.
and Daiwa Securities America 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, guarantees and intercompany notes permitted by
Section 4.09, and commission, travel and similar advances to officers and
employees made in the ordinary course of business). For purposes of Section 4.07,
the sale of Equity Interests of a Person that is a Restricted Subsidiary
following which such Person ceases to be a Subsidiary shall be deemed to be an
Investment by the Issuer in an amount equal to the fair market value of the
Equity Interests of such Person held by the Issuer and its Restricted
Subsidiaries immediately following such sale.


 


“Issue Date” means July 28,
2008.


 


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


 


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


 


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


 


“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


 


12

















 


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 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.


 


13

















 


“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.


 


“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 Issuer of any such Person).


 


“Permitted
Investments” means:


 


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


 


(b)                                 Investments
in Cash Equivalents and Marketable Securities;


 


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


 


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


 


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


 


14

















 


(f)                                    Investments
in existence on the Issue Date;


 


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


 


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


 


(i)                                     other
Investments in an amount not to exceed $75.0 million 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, each of (x) the
Domestic Cash Amount and (y) the Foreign Cash Amount;


 


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


 


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


 


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


 


“Permitted
Liens” means:


 


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


 


(b)                                 Liens
securing (x) Indebtedness under any Credit Facility (and related Hedging
Obligations and cash management obligations to the extent such Liens arise
under the definitive documentation governing such Indebtedness and the
incurrence of such obligations is not otherwise prohibited by this Indenture)
permitted by Section 4.09(b)(2) and (y) other Indebtedness
permitted under Section 4.09; provided
that in the case of any such Indebtedness described in this subclause (y),
such Indebtedness, when aggregated with the amount of Indebtedness of the
Issuer and the Guarantors which is secured by a Lien, does not cause the
Consolidated Secured Indebtedness Leverage Ratio to exceed 2.25 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


 


15

















 


Restricted Subsidiaries other than the assets
so acquired, constructed, installed or improved, products and proceeds thereof
and insurance proceeds with respect thereto;


 


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


 


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


 


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


 


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


 


(i)                                     Liens
existing on the Issue Date;


 


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


 


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


 


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


 


(m)                               easements,
rights-of-way, covenants, restrictions (including zoning restrictions), minor
defects or irregularities in title and other similar charges or encumbrances


 


16

















 


not, in any material respect, impairing the
use of the encumbered property for its intended purposes;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(v)                                 extensions,
renewals or refundings of any Liens referred to in 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


 


(w)                               other
Liens securing Indebtedness that is permitted by the terms of this Indenture to
be outstanding having an aggregate principal amount at any one time outstanding
not to exceed $50.0 million.


 


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


 


“Preferred Equity Interest”
in any Person, means an Equity Interest of any class or classes (however
designated) which is preferred as to the payment of dividends or distributions,


 


17

















 


or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over Equity Interests of any other
class in such Person.


 


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


 


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


 


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


 


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


 


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


 


“Rating
Agencies” means:


 


(a)                                  S&P;


 


(b)                                 Moody’s;
or


 


18

















 


(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.


 


“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.


 


“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 (a) Unrestricted Subsidiaries and (b) Subsidiaries
that pursuant to the Transactions are expected to be transferred before (and no
longer be Subsidiaries of the Issuer upon) the occurrence of the Spin-Off.


 


“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.


 


19

















 


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


 


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


 


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


 


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


 


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


 


“Specified Affiliate Payments”
means (i) amounts paid by the Issuer or any of its Subsidiaries to IAC or
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.


 


“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.


 


20














 


“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 under the Issue Date and
the initial borrowings under the Credit Agreement to IAC and the other
transactions undertaken in connection with the foregoing as 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); (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 


 


21

















 


any other Subsidiary of the Issuer (other than another Unrestricted
Subsidiary), or Equity Interests issued by such Subsidiary, directly or
indirectly, contingently or otherwise, to satisfaction thereof;


 


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


 


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


 


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


 


“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.


 


SECTION 1.02.                                         Other Definitions.


 


	
  Term

  	
   

  	
  Defined

  in Section

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.11

  
	
  “Change
  of Control Offer”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment”

  	
   

  	
  4.15

  
	
  “Change
  of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.04

  
	
  “Covenant
  Suspension Event”

  	
   

  	
  4.19

  
	
  “Deadline”

  	
   

  	
  4.20(d)

  
	
  “DTC”

  	
   

  	
  2.01(b)

  



 


22

















 


	
  “Escrow
  Agent”

  	
   

  	
  4.20(a)

  
	
  “Escrow
  Agreement”

  	
   

  	
  4.20(a)

  
	
  “Escrowed
  Property”

  	
   

  	
  4.20(a)

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Excess
  Proceeds”

  	
   

  	
  4.10

  
	
  “Excess
  Proceeds Offer”

  	
   

  	
  3.08(a)

  
	
  “Global
  Note Legend

  	
   

  	
  2.01(b)

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Issuer”

  	
   

  	
  Preamble

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.03

  
	
  “Measurement
  Period”

  	
   

  	
  “Consolidated
  Fixed

  Charge Coverage Ratio”

  
	
  “Offer
  Amount”

  	
   

  	
  3.08(b)

  
	
  “Offer
  Period”

  	
   

  	
  3.08(b)

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Default”

  	
   

  	
  6.01(e)

  
	
  “Private
  Placement Legend”

  	
   

  	
  2.01(c)

  
	
  “Purchase
  Date”

  	
   

  	
  3.08(b)

  
	
  “Refinancing
  Indebtedness”

  	
   

  	
  4.09(b)(ii)

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Regulation
  S Temporary Global Note Legend”

  	
   

  	
  2.01(d)

  
	
  “Release”

  	
   

  	
  4.20(b)

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Reversion Date”

  	
   

  	
  4.19(c)

  
	
  “Rule 144”

  	
   

  	
  2.01(c)

  
	
  “Special Mandatory Redemption”

  	
   

  	
  3.09

  
	
  “Special Mandatory Redemption Amount”

  	
   

  	
  4.20(a)

  
	
  “Special Mandatory Redemption Date”

  	
   

  	
  3.09

  
	
  “Special Mandatory Redemption Price”

  	
   

  	
  3.09

  
	
  “Sub Entity”

  	
   

  	
  “Change of Control”

  
	
  “Suspended Covenants”

  	
   

  	
  4.19(a)

  
	
  “Suspension Period”

  	
   

  	
  4.19(b)

  
	
  “Transaction Date”

  	
   

  	
  “Consolidated Fixed

  Charge Coverage Ratio”

  



 


SECTION 1.03.                                         Incorporation by Reference of Trust Indenture Act.


 


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


 


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


 


“indenture
securities” means the Notes;


 


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


 


23

















 


“indenture
to be qualified” means this Indenture;


 


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


 


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


 


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


 


SECTION 1.04.                                         Rules of Construction.


 


Unless the context otherwise
requires,


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 1.05.                                         Acts of Holders; Record Dates.


 


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


 


(b)                                 The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to such Person the execution


 


24

















 


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.


 


(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


 


25

















 


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 the following legend (the “Private Placement Legend”) on the face
thereof:


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE ‘‘SECURITIES ACT’’), 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: (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


 


26

















 


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 thereof (“Rule 144”) without regard to volume,
manner of sale or any other restrictions contained in Rule 144 (other than
the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so
long as such holding period requirement is satisfied at such time of
determination) by Holders that are not Affiliates of the Issuer.


 


(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.


 


27














 


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


 


The Trustee shall authenticate (i) Initial
Notes for original issue on the Issue Date in an aggregate principal amount of
$300.0 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 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,


 


28

















 


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


 


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


 


SECTION 2.04.                                         Paying Agent To Hold Money in Trust.


 


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


 


SECTION 2.05.                                         Lists of Holders of the Notes.


 


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


 


SECTION 2.06.                                         Transfer and Exchange.


 


(a)                                  Transfer and Exchange of Global Notes.  A
Global Note may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.  Global Notes will be exchanged by the Issuer
for Definitive Notes, subject to any applicable laws, if (i) the Issuer
delivers to the Trustee notice from the Depositary that (A) the Depositary
is unwilling or unable to continue to act as Depositary for the Global Notes or
(B) the Depositary is no longer a clearing agency registered under the
Exchange Act and, in either case, the Issuer fails to appoint a successor
Depositary within 90 days after the date of such notice from the Depositary, (ii) the
Issuer in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) upon request of the Trustee
or Holders of a majority of the aggregate principal amount of outstanding Notes
if there shall have occurred and be continuing a Default or Event of Default
with respect to the Notes; provided
that in no event shall any temporary Note that is a Global Note issued pursuant
to Regulation S be exchanged by the Company for Definitive Notes prior to


 


29

















 


(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 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


 


30

















 


whose name
such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above.  Upon
consummation of an Exchange Offer by the Issuer in accordance with paragraph (f) below,
the requirements of this subparagraph (ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the holder of such beneficial interests in
the Restricted Global Notes.  Upon
satisfaction of all of the 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


 


31

















 


(D)                               the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


(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 (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;


 


33

















 


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


 


(D)                               the Registrar receives
the following:


 


(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 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.


 


34

















 


(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 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


 


35

















 


(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 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).


 


36














 


(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 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 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


 


37

















 


the form of Exhibit C
hereto, including the applicable certifications in item (4) thereof;


 


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


 


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


 


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


 


38

















 


(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 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


 


39

















 


the transfer
of or to exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.


 


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


 


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


 


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


 


SECTION 2.07.                                         Replacement Notes.


 


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


 


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


 


SECTION 2.08.                                         Outstanding Notes.


 


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


 


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.


 


40

















 


SECTION 2.09.                                         Treasury Notes.


 


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


 


SECTION 2.10.                                         Temporary Notes.


 


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


 


SECTION 2.11.                                         Cancellation.


 


The Issuer at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment.  The Trustee shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall dispose of all canceled Notes in its customary manner
(subject to the record retention requirements of the Exchange Act), unless the
Issuer directs canceled Notes to be returned to it.  The Issuer may not issue new Notes to replace
Notes that it has redeemed or paid or that have been delivered to the Trustee
for cancellation.  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 at the earliest practicable date but in all events at least five
Business Days prior to the payment date, in each case at the rate provided in
the Notes.  The Issuer shall, with the
consent of the Trustee, fix or cause to be fixed each such special record date
and payment date.  At least 15 days
before the special record date, the Issuer (or the Trustee, in the name of and
at the expense of the Issuer) shall mail to Holders of the Notes a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.


 


41

















 


SECTION 2.13.                                         Record Date.


 


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


 


SECTION 2.14.                                         CUSIP Number.


 


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


 


ARTICLE 3


 


REDEMPTION


 


SECTION 3.01.                                         Notices to Trustee.


 


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


 


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


 


42

















 


thereof to be redeemed.  Notes and portions of them selected shall be
in amounts of $2,000 or whole multiples of $1,000; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed.  Except as provided in the preceding sentence,
provisions hereof that apply to Notes called for redemption also apply to
portions of Notes called for redemption.


 


SECTION 3.03.                                         Notice of Redemption.


 


Subject to the provisions of Sections 3.08
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 Company 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.


 


43

















 


SECTION 3.04.                                         Effect of Notice of Redemption.


 


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


 


SECTION 3.05.                                         Deposit of Redemption Price.


 


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


 


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


 


SECTION 3.06.                                         Notes Redeemed in Part.


 


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


 


SECTION 3.07.                                         Optional Redemption.


 


(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’ or 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  August 1 of the years indicated
below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2012

  	
   

  	
  105.375

  	
  %

  
	
  2013

  	
   

  	
  102.688

  	
  %

  
	
  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 110.75% of the principal amount thereof



 


44

















 


on the repurchase 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
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 of its Subsidiaries 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 $25.0 million, the Issuer shall make
an offer to all Holders of the Notes (an “Excess
Proceeds Offer”) to purchase the maximum principal amount of Notes
that may be purchased out of such Excess Proceeds at an offer price in cash in
an amount equal to 100% of the principal amount thereof, together with accrued
and unpaid interest to the date fixed for the closing of such offer in
accordance with the procedures set forth herein.  To the extent the Issuer or a Restricted
Subsidiary is required under the terms of Indebtedness of the Issuer or such
Restricted Subsidiary (other than Subordinated Indebtedness), the Issuer shall
make a pro rata offer to the holders of all such Indebtedness (including the
Notes) with such proceeds.  If the aggregate
principal amount of Notes and other pari
passu Indebtedness surrendered by holders thereof exceeds the amount
of such Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased on
a pro rata basis.  To the extent that the
principal amount of Notes tendered pursuant to an Excess Proceeds Offer is less
than the amount of such Excess Proceeds and other pari passu Indebtedness, the Issuer may use any remaining
Excess Proceeds for general corporate purposes in compliance with the
provisions of this Indenture.  Upon
completion of an Excess Proceeds Offer, the amount of Excess Proceeds shall be
reset at zero.


 


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


 


45














 


(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;


 


(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


 


46

















 


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”).


 


SECTION 3.10.                                         Notice to 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.


 


47

















 


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.


 


(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


 


48

















 


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.


 


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


 


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


 


SECTION 4.04.                                         Compliance Certificate.


 


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


 


49

















 


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


 


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


 


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


 


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


 


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


 


(A)                              50%
of the Consolidated Net Income of the Issuer for the period (taken as one
accounting period) from July 1, 2008 to the end of the Issuer’s most
recently ended fiscal quarter for which internal financial 


 


50

















 


statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income shall be a
deficit, minus 100% of such aggregate deficit); plus


 


(B)                                an
amount equal to the sum of (x) 100% of the aggregate net cash proceeds and
the fair market value of any property or assets received by the Issuer 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 (3) 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 received by the Issuer and
the Issuer’s Restricted Subsidiaries from an Unrestricted Subsidiary since the
Issue Date to the extent not included in Consolidated Cash Flow; 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 (3); 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
the Issuer’s 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 (6) below,
no Default or Event of Default shall have occurred and be continuing):


 


51

















 


(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, (b) in exchange for, or out of the proceeds
of the substantially concurrent incurrence of, Refinancing Indebtedness
permitted to be incurred under clause (10) of Section 4.09 or
other Indebtedness permitted to be incurred under Section 4.09 or (c) with
the Net Proceeds from an Asset Sale or upon a Change of Control, in each case,
to the extent required by the agreement governing such Subordinated
Indebtedness but only if the Issuer shall have previously applied such Net
Proceeds to make an Excess Proceeds Offer or made a Change of Control Offer, as
the case may be, in accordance with Sections 3.08 and 4.15 and purchased all
Notes validly tendered pursuant to the relevant offer prior to redeeming or
repurchasing such Subordinated Indebtedness;


 


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


 


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


 


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


 


(6)                                 other
Restricted Payments in an amount not to exceed $100.0 million;


 


(7)                                 Specified
Affiliate Payments; and


 


(8)                                 the
Transactions.


 


(c)                                 Restricted
Payments made pursuant to Section 4.07(a) and clause (1) of
Section 4.07(b) shall be included as Restricted Payments in any
computation made pursuant to clause (3) of the second paragraph of Section 4.07(a).
Restricted Payments made pursuant to clauses (2) through (8) of Section 4.07(b) shall
not be included as Restricted Payments in any computation made pursuant to
clause (3) of Section 4.07(a).


 


52

















 


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


 


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


 


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


 


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


 


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


 


(c)                                  transfer
any of the Issuer’s properties or assets to the Issuer or any of its
Subsidiaries,


 


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


 


(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;


 


53

















 


(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;


 


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


 


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


 


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


 


SECTION 4.09.                                         Limitation on Incurrence of
Indebtedness.


 


(a)                                 The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to (collectively, “incur”) any Indebtedness (including Acquired
Debt) or permit any of its Restricted Subsidiaries to issue any Preferred
Equity Interests; provided, however, that, notwithstanding the
foregoing, the Issuer and any Guarantor may incur Indebtedness (including
Acquired Debt) and any Guarantor may issue Preferred Equity Interests, if,
after giving effect to the incurrence of such Indebtedness or the issuance of such
Preferred Equity Interests


 


54

















 


and the
application of the net proceeds thereof on a pro forma basis, the Issuer’s
Consolidated Fixed Charge Coverage Ratio would have been at least 2.0 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
$300.0 million;


 


(2)                                 Indebtedness
of the Issuer or any Restricted Subsidiary under any Credit Facility in an
aggregate principal amount at any time outstanding not to exceed the excess of (x) $675.0 million
over (y) the aggregate principal amount of Indebtedness under the Credit
Facilities permanently repaid pursuant to clause (1) of the second
paragraph of Section 4.10;


 


(3)                                 (x) Indebtedness
among the Issuer and the Restricted Subsidiaries; provided that any such Indebtedness owed by the Issuer or a
Guarantor to any Restricted Subsidiary that is not a Guarantor shall be
subordinated to the prior payment in full of the 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 $50.0 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 $50.0 million outstanding at any time;


 


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


 


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


 


55














 


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


 


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


 


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


 


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


 


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


 


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


 


(11)         additional
Indebtedness in an aggregate principal amount not to exceed $50.0 million
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)         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;


 


56

















 


(14)         the
incurrence by the Issuer or its Subsidiaries of guarantees in respect of
obligations of joint ventures; provided
that the aggregate principal amount of Indebtedness incurred pursuant to this
clause (14) shall not exceed $50.0 million outstanding at any time;


 


(15)         Indebtedness
of Foreign Subsidiaries in an aggregate principal amount not to exceed 5% of
Consolidated Total Assets that are attributable to Restricted Subsidiaries that
are Foreign Subsidiaries;


 


(16)         overdrafts
paid within 5 Business Days;


 


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


 


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


 


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


 


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


 


(e)           The
amount of indebtedness outstanding as of any date shall be (1) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, (2) the principal amount thereof, in the case of any other
Indebtedness, (3) in the case of the guarantee by the specified Person of
any Indebtedness of any other Person, the maximum liability to which the
specified Person may be subject upon the occurrence of the contingency giving
rise to the obligation and (4) in the case of Indebtedness of others
guaranteed by means of a Lien on any asset of 


 


57

















 


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 $25.0 million or (ii) in all
other cases by a resolution of the Issuer’s Board of Directors (or of a
committee appointed thereby for such purposes)); and


 


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


 


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


 


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


 


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


 


58

















 


(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
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


 


59

















 


(b)           if
such Affiliate Transaction involves aggregate payments in excess of $25.0 million,
such Affiliate Transaction has either (i) been approved by a resolution of
the members of (x) the Board of Directors of the Issuer or (y) any
duly constituted committee thereof, in each case including a majority of the
disinterested members thereof who meet the independence requirements of the New
York Stock Exchange or NASDAQ or (ii) if there are no disinterested
directors on the Board of Directors of the Issuer, the Issuer or such
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 the Restricted Subsidiaries pursuant to charter, bylaw, statutory or
contractual provisions;


 


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


 


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


 


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


 


(vi)            any agreements or arrangements in
effect on the Issue Date and described in the 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 with persons who are
Affiliates of the Issuer solely as a result of the Issuer’s or a Restricted
Subsidiary’s Investment in such Person; and


 


(x)             Specified Affiliate Payments.


 


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


 


SECTION 4.14.                                         Organizational Existence.


 


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


 


61

















 


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 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


 


62

















 


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 a Note for or as an inducement to any consent, waiver
or amendment of any of the terms or provisions hereof or the Notes unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Notes that are either QIBs or that are located outside of the United States
and, in each case,  that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.


 


SECTION 4.19.                                                                 Suspension of Covenants.


 


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


 


(1)     Section 3.08;


 


(2)     Section 4.07;


 


(3)     Section 4.08;


 


(4)     Section 4.09;


 


(5)     Section 4.10;


 


(6)     Section 4.11;


 


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


 


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


 


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


 


63

















 


Issuer and its Restricted Subsidiaries will thereafter again be subject
to the Suspended Covenant with respect to future events.


 


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


 


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.


 


64

















 


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


 


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


 


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


 


(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, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.09(a).


 


65














 


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


 


SECTION 5.02.                                         Successor Corporation Substituted.


 


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


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.                                         Events of Default.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(k)           a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:  (i) is
for relief against the Issuer or any Significant Subsidiary of the Issuer in an
involuntary case; (ii) appoints a custodian of the Issuer or any
Significant Subsidiary of the Issuer or for all or substantially all of the
property of the Issuer or any 


 


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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.


 


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.


 


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SECTION 6.05.                                         Control by Majority.


 


Holders of a majority in principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it.  However,
the Trustee may refuse to follow any direction that conflicts with the law or
this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in personal
liability.


 


SECTION 6.06.                                         Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.08.                                         Collection Suit by Trustee.


 


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


 


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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.


 


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


 


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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


 


(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


 


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(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.


 


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


 


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


 


(g)           Except with respect to Section 4.01 hereof, the
Trustee shall have no duty to inquire as to the performance of the Issuer’s
covenants in Article 4.  In
addition, the Trustee shall 


 


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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 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


 


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in
payment of principal of, premium, if any, or interest on any Note, the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.


 


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


 


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


 


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


 


SECTION 7.07.                                         Compensation and Indemnity.


 


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


 


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


 


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the
fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.


 


SECTION 7.08.                                         Replacement of Trustee.


 


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


 


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


 


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


 


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


 


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


 


(d)           the Trustee becomes incapable of acting.


 


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


 


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


 


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.


 


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


 


SECTION 7.09.                                              Successor Trustee by Merger, Etc.


 


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


 


SECTION 7.10.                                              Eligibility; Disqualification.


 


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


 


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


 


SECTION 7.11.                                              Preferential Collection of Claims
Against Issuer.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(d) this Section 8.03. 
Subject to compliance with this Article 8, the Issuer may exercise
its option under this Section 8.03 notwithstanding the prior exercise of
its option under Section 8.04 hereof with respect to the Notes.


 


SECTION 8.04.                                              Covenant Defeasance.


 


Upon the Issuer’s exercise under Section 8.02 hereof of the option
applicable to this Section 8.04, the Issuer shall be released from its
obligations under the covenants contained in Sections 3.08, 4.03, 4.04, 4.05,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 (other than existence of the
Issuer (subject to Section 5.01), 4.15, 5.01 (except clauses (a) and
(b)) and 10.03 hereof with respect to the outstanding Notes on and after the
date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall
thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for GAAP).  For
this purpose, such Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01(c) hereof,
but, except as specified above, the remainder hereof and such Notes shall be
unaffected thereby.  In addition, upon
the Issuer’s exercise under Section 8.02 hereof of the option applicable
to this Section 8.04, Sections 6.01(c) through 6.01(h) shall not
constitute Events of Default.


 


SECTION 8.05.                                              Conditions to Legal or Covenant
Defeasance.


 


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


 


	
  (i)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

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

  



 


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  (iii)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

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

  



 


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


 


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


 


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


 


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


 


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the amount thereof which would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.


 


SECTION 8.07.                                              Repayment to Issuer.


 


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


 


SECTION 8.08.                                              Reinstatement.


 


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


 


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registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code);


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 9.02.                                              With Consent of Holders of Notes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuer shall mail to the Holders of Notes affected
thereby a notice briefly describing the


 


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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.


 


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.


 


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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 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


 


84

















 


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


 


SECTION 10.02.                                   Execution and Delivery of
Guarantees.


 


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


 


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


 


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


 


85

















 


than the Issuer or another Guarantor (in each case other than in accordance
with Section 4.10) unless:


 


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


 


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


 


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


 


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


 


SECTION 10.04.                                   Successor Corporation Substituted.


 


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


 


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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.


 


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:


 


Ticketmaster

8800 West Sunset Boulevard, 7th Floor

West Hollywood, California 90069 

Facsimile No.:  (213) 386 1244

Attention:  General Counsel


 


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If to the Trustee:

The Bank of New York Mellon.

101 Barclay Street, Floor 8W


New York, NY 10286


Facsimile No.: 212-815-5704


Attention: 
Corporate Trust Administration


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 11.04.                                   Certificate and Opinion as to
Conditions Precedent.


 


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


 


88

















 


(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.


 


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.


 


89

















 


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.


 


SECTION 11.13.                                   Table of Contents, Headings, Etc.


 


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


 


SECTION 11.14.                                   Force Majeure.


 


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


 


90

















 


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]


 


91














 


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


 


	
   

  	
   

  	
  TICKETMASTER, as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Regan

  
	
   

  	
   

  	
  Name: 

  	
  Brian Regan

  
	
   

  	
   

  	
  Title:  

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  	
  and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  IAC PARTNER
  MARKETING, INC.,

  
	
   

  	
   

  	
  MICROFLEX 2001
  LLC,

  
	
   

  	
   

  	
  TICKETMASTER ADVANCE TICKETS, LLC,

  
	
   

  	
   

  	
  TICKETMASTER CALIFORNIA GIFT CERTIFICATES

  L.L.C.,

  
	
   

  	
   

  	
  TICKETMASTER CHINA VENTURES, L.L.C.,

  
	
   

  	
   

  	
  TICKETMASTER EDCS LLC,

  
	
   

  	
   

  	
  TICKETMASTER FLORIDA GIFT CERTIFICATES L.L.C.,

  
	
   

  	
   

  	
  TICKETMASTER GEORGIA GIFT CERTIFICATES L.L.C.,

  
	
   

  	
   

  	
  TICKETMASTER INDIANA HOLDINGS CORP.,

  
	
   

  	
   

  	
  TICKETMASTER L.L.C.,

  
	
   

  	
   

  	
  TICKETMASTER MULTIMEDIA HOLDINGS LLC,

  
	
   

  	
   

  	
  TICKETMASTER NEW VENTURES HOLDINGS, INC.,

  
	
   

  	
   

  	
  TICKETMASTER WEST VIRGINIA GIFT
  CERTIFICATES L.L.C.,

  
	
   

  	
   

  	
  TICKETMASTER-INDIANA, L.L.C.,

  
	
   

  	
   

  	
  TICKETWEB INC.,

  
	
   

  	
   

  	
  TM VISTA INC.,

  
	
   

  	
   

  	
  as Guarantors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Regan

  
	
   

  	
   

  	
  Name:

  	
  Brian Regan

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President 

  and Chief Financial Officer

  
					



 


 


[Signature Page to Indenture]


 

















 


	
   

  	
   

  	
  ECHOMUSIC, LLC,

  
	
   

  	
   

  	
  EVENTINVENTORY.COM,
  INC.,

  
	
   

  	
   

  	
  NETTICKETS.COM,
  INC.,

  
	
   

  	
   

  	
  OPENSEATS,
  INC.,

  
	
   

  	
   

  	
  PACIOLAN, INC.,

  
	
   

  	
   

  	
  PREMIUM INVENTORY, INC.,

  
	
   

  	
   

  	
  SHOW ME TICKETS, LLC,

  
	
   

  	
   

  	
  THE V.I.P. TOUR COMPANY,

  
	
   

  	
   

  	
  TICKETSNOW.COM,
  INC.,

  
	
   

  	
   

  	
  TNOW
  ENTERTAINMENT GROUP, INC.,

  
	
   

  	
   

  	
  as Guarantors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Regan

  
	
   

  	
  Name: 

  	
  Brian Regan

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


[Signature Page to Indenture]


 

















 


	
   

  	
  THE BANK OF
  NEW YORK MELLON,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sherma Thomas

  
	
   

  	
   

  	
  Name: Sherma

  
	
   

  	
   

  	
  Title:
  Assistant Treasurer

  



 


[Signature Page to Indenture]