exv4w1






Exhibit 4.1




 





Terremark Worldwide, Inc.




9.500% SENIOR SECURED SECOND LIEN NOTES DUE 2013



 





Indenture



Dated as of November 16, 2010



 





The Bank of New York Mellon Trust Company, N.A.



Second Lien Trustee



 





      








 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 	 
	Trust Indenture	 	 	 
	Act Section	 	Indenture Section	 
	310	(a)(1) 	 	 	7.10	 
	 	(a)(2) 	 	 	7.10	 
	 	(a)(3) 	 	 	N.A.	 
	 	(a)(4) 	 	 	N.A.	 
	 	(a)(5) 	 	 	7.10	 
	 	(b) 	 	 	7.10	 
	 	(c) 	 	 	N.A.	 
	311	(a) 	 	 	7.11	 
	 	(b) 	 	 	7.11	 
	 	(c) 	 	 	N.A.	 
	312	(a) 	 	 	2.06	 
	 	(b) 	 	 	13.03	 
	 	(c) 	 	 	13.03	 
	313	(a) 	 	 	7.06	 
	 	(b)(1) 	 	 	7.06, 10.06	 
	 	(b)(2) 	 	 	7.06, 10.06	 
	 	(c) 	 	 	7.06, 13.02	 
	 	(d) 	 	 	7.06	 
	314	(a) 	 	 	4.03, 4.04, 13.05	 
	 	(b) 	 	 	10.05	 
	 	(c)(1) 	 	 	7.02, 13.04	 
	 	(c)(2) 	 	 	7.02, 13.04	 
	 	(c)(3) 	 	 	N.A.	 
	 	(d) 	 	 	10.06, 10.07	 
	 	(e) 	 	 	13.05	 
	 	(f) 	 	 	N.A.	 
	315	(a) 	 	 	7.01	 
	 	(b) 	 	 	7.05	 
	 	(c) 	 	 	7.01	 
	 	(d) 	 	 	7.01	 
	 	(e) 	 	 	6.11	 
	316	(a) (last sentence) 	 	 	2.10	 
	 	(a)(1)(A) 	 	 	6.05	 
	 	(a)(1)(B) 	 	 	6.04	 
	 	(a)(2) 	 	 	N.A.	 
	 	(b) 	 	 	6.07	 








 




			
	N.A. means not applicable.
	 	 	 
	*	 	This Cross-Reference Table is not part of the Indenture.





 









 





	 	 	 	 	 	 
	Trust Indenture	 	 	 
	Act Section	 	Indenture Section	 
	 	(c) 	 	 	2.13, 9.02, 13.15	 
	317	(a)(1) 	 	 	6.08	 
	 	(a)(2) 	 	 	6.09	 
	 	(b) 	 	 	2.05	 
	318	(a) 	 	 	13.01	 
	 	(b) 	 	 	N.A.	 
	 	(c) 	 	 	13.01	 











 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE ONE
 DEFINITIONS AND INCORPORATION
 BY REFERENCE	 	 	 	 
	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	35	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	36	 
	Section 1.04. Rules of Construction
	 	 	36	 
	 
	ARTICLE TWO
 THE NOTES	 	 	 	 
	 
	Section 2.01. Form and Dating
	 	 	37	 
	Section 2.02. Execution and Authentication
	 	 	38	 
	Section 2.03. Methods of Receiving Payments on the Notes
	 	 	39	 
	Section 2.04. Registrar and Paying Agent
	 	 	39	 
	Section 2.05. Paying Agent to Hold Money in Trust
	 	 	39	 
	Section 2.06. Holder Lists
	 	 	40	 
	Section 2.07. Transfer and Exchange
	 	 	40	 
	Section 2.08. Replacement Notes
	 	 	54	 
	Section 2.09. Outstanding Notes
	 	 	54	 
	Section 2.10. Treasury Notes
	 	 	55	 
	Section 2.11. Temporary Notes
	 	 	55	 
	Section 2.12. Cancellation
	 	 	55	 
	Section 2.13. Defaulted Interest
	 	 	55	 
	Section 2.14. CUSIP Numbers
	 	 	56	 
	 
	ARTICLE THREE
 REDEMPTION AND OFFERS TO
 PURCHASE	 	 	 	 
	 
	Section 3.01. Notices to Trustee
	 	 	56	 
	Section 3.02. Selection of Notes to Be Redeemed
	 	 	56	 
	Section 3.03. Notice of Redemption
	 	 	57	 
	Section 3.04. Effect of Notice of Redemption
	 	 	58	 
	Section 3.05. Deposit of Redemption Price
	 	 	58	 
	Section 3.06. Notes Redeemed in Part
	 	 	58	 
	Section 3.07. Optional Redemption
	 	 	58	 
	Section 3.08. Repurchase Offers
	 	 	59	 
	Section 3.09. Application of Trust Money
	 	 	61	 
	 
	ARTICLE FOUR
 COVENANTS	 	 	 	 
	 
	Section 4.01. Payment of Notes
	 	 	61	 
	Section 4.02. Maintenance of Office or Agency
	 	 	61	 
	Section 4.03. Reports
	 	 	62	 
	Section 4.04. Compliance Certificate
	 	 	62	 
	Section 4.05. Taxes
	 	 	63	 
	Section 4.06. Stay, Extension and Usury Laws
	 	 	63	 






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	 	 	Page	 
	Section 4.07. Restricted Payments
	 	 	63	 
	Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	67	 
	Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock
	 	 	69	 
	Section 4.10. Asset Sales
	 	 	72	 
	Section 4.11. Transactions with Affiliates
	 	 	76	 
	Section 4.12. Liens
	 	 	77	 
	Section 4.13. Business Activities
	 	 	77	 
	Section 4.14. Offer to Repurchase upon a Change of Control
	 	 	77	 
	Section 4.15. Limitation on Sale and Leaseback Transactions
	 	 	79	 
	Section 4.16. Designation of Restricted and Unrestricted Subsidiaries
	 	 	79	 
	Section 4.17. Payments for Consent
	 	 	80	 
	Section 4.18. Additional Guarantees
	 	 	80	 
	Section 4.19. Impairment of Security Interest
	 	 	81	 
	Section 4.20. After-Acquired Property
	 	 	81	 
	Section 4.21. Perfection of Liens Securing Collateral; Further Assurances; Insurance
	 	 	82	 
	Section 4.22. Real Estate
	 	 	84	 
	Section 4.23. Covenant Suspension
	 	 	85	 
	 
	ARTICLE FIVE
 SUCCESSORS	 	 	 	 
	 
	Section 5.01. Merger, Consolidation or Sale of Assets
	 	 	86	 
	Section 5.02. Successor Corporation Substituted
	 	 	87	 
	 
	ARTICLE SIX
 DEFAULTS AND REMEDIES	 	 	 	 
	 
	Section 6.01. Events of Default
	 	 	88	 
	Section 6.02. Acceleration
	 	 	90	 
	Section 6.03. Other Remedies
	 	 	90	 
	Section 6.04. Waiver of Past Defaults
	 	 	90	 
	Section 6.05. Control by Majority
	 	 	91	 
	Section 6.06. Limitation on Suits
	 	 	91	 
	Section 6.07. Rights of Holders of Notes to Receive Payment
	 	 	92	 
	Section 6.08. Collection Suit by Trustee
	 	 	92	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	92	 
	Section 6.10. Priorities
	 	 	93	 
	Section 6.11. Undertaking for Costs
	 	 	93	 
	 
	ARTICLE SEVEN
 TRUSTEE	 	 	 	 
	 
	Section 7.01. Duties of Trustee
	 	 	94	 
	Section 7.02. Certain Rights of Trustee
	 	 	95	 
	Section 7.03. Individual Rights of Trustee
	 	 	96	 
	Section 7.04. [RESERVED]
	 	 	96	 
	Section 7.05. Notice of Defaults
	 	 	96	 
	Section 7.06. Reports by Trustee to Holders of the Notes
	 	 	96	 
	Section 7.07. Compensation and Indemnity
	 	 	97	 
	Section 7.08. Replacement of Trustee
	 	 	97	 
	Section 7.09. Successor Trustee by Merger, Etc
	 	 	99	 
	Section 7.10. Eligibility; Disqualification
	 	 	99	 






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	 	 	Page	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	99	 
	Section 7.12. No Representation by Trustee
	 	 	99	 
	 
	ARTICLE EIGHT
 DEFEASANCE AND COVENANT DEFEASANCE	 	 	 	 
	 
	Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	99	 
	Section 8.02. Legal Defeasance and Discharge
	 	 	100	 
	Section 8.03. Covenant Defeasance
	 	 	100	 
	Section 8.04. Conditions to Legal or Covenant Defeasance
	 	 	101	 
	Section 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions
	 	 	102	 
	Section 8.06. Repayment to the Company
	 	 	103	 
	Section 8.07. Reinstatement
	 	 	103	 
	Section 8.08. Survival of Rights
	 	 	103	 
	 
	ARTICLE NINE
 AMENDMENT, SUPPLEMENT AND WAIVER	 	 	 	 
	 
	Section 9.01. Without Consent of Holders of Notes
	 	 	104	 
	Section 9.02. With Consent of Holders of Notes
	 	 	105	 
	Section 9.03. Compliance with Trust Indenture Act
	 	 	107	 
	Section 9.04. Revocation and Effect of Consents
	 	 	107	 
	Section 9.05. Notation on or Exchange of Notes
	 	 	107	 
	Section 9.06. Trustee to Sign Amendments, Etc.
	 	 	108	 
	 
	ARTICLE TEN
 COLLATERAL AND SECURITY	 	 	 	 
	 
	Section 10.01. Equal and Ratable Sharing of Collateral by Holders of Priority Lien Debt
	 	 	108	 
	Section 10.02. Ranking of Priority Liens
	 	 	109	 
	Section 10.03. Relative Rights
	 	 	109	 
	Section 10.04. Security Documents
	 	 	110	 
	Section 10.05. Recording and Opinions
	 	 	111	 
	Section 10.06. Release of Collateral
	 	 	111	 
	Section 10.07. [RESERVED]
	 	 	112	 
	Section 10.08. Disposition of Collateral Without Release
	 	 	112	 
	Section 10.09. Authorization of Actions to Be Taken by the Trustee Under the Security Documents
	 	 	113	 
	Section 10.10. Authorization of Receipt of Funds by the Trustee under the Security Agreement

	 	 	113	 
	Section 10.11. Lien Sharing and Priority Confirmation
	 	 	113	 
	Section 10.12. Voting
	 	 	114	 
	Section 10.13. [RESERVED]
	 	 	114	 
	Section 10.14. Limitation on Duty of Trustee in Respect of Collateral; Indemnification
	 	 	114	 
	Section 10.15. Collateral Trustee a Third Party Beneficiary
	 	 	115	 
	 
	ARTICLE ELEVEN
 NOTE GUARANTEES	 	 	 	 
	 
	Section 11.01. Guarantee
	 	 	115	 
	Section 11.02. Limitation on Guarantor Liability
	 	 	116	 
	Section 11.03. Execution and Delivery of Note Guarantee
	 	 	116	 
	Section 11.04. Guarantors May Consolidate, Etc., on Certain Terms
	 	 	117	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 11.05. Release of a Guarantor
	 	 	118	 
	 
	ARTICLE TWELVE
 SATISFACTION AND DISCHARGE	 	 	 	 
	 
	Section 12.01. Satisfaction and Discharge
	 	 	118	 
	Section 12.02. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
	 	 	119	 
	 
	ARTICLE THIRTEEN
 MISCELLANEOUS	 	 	 	 
	 
	Section 13.01. Trust Indenture Act Controls
	 	 	120	 
	Section 13.02. Notices
	 	 	120	 
	Section 13.03. Communication by Holders of Notes with Other Holders of Notes
	 	 	121	 
	Section 13.04. Certificate and Opinion as to Conditions Precedent
	 	 	122	 
	Section 13.05. Statements Required in Certificate or Opinion
	 	 	122	 
	Section 13.06. Rules by Trustee and Agents
	 	 	122	 
	Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	122	 
	Section 13.08. Governing Law
	 	 	123	 
	Section 13.09. Waiver of Jury Trial
	 	 	123	 
	Section 13.10. Consent to Jurisdiction
	 	 	123	 
	Section 13.11. No Adverse Interpretation of Other Agreements
	 	 	123	 
	Section 13.12. Successors
	 	 	123	 
	Section 13.13. Severability
	 	 	124	 
	Section 13.14. Counterpart Originals
	 	 	124	 
	Section 13.15. Acts of Holders
	 	 	124	 
	Section 13.16. Table of Contents, Headings, Etc
	 	 	125	 
	Section 13.17. USA Patriot Act.
	 	 	125	 
	Section 13.18. Force Majeure
	 	 	125	 






EXHIBITS




	 	 	 

	Exhibit A

	 	FORM OF NOTE
	 
	 	 
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER
	 
	 	 
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	 
	 	 
	Exhibit D

	 	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	 
	 	 
	Exhibit E

	 	FORM OF SUPPLEMENTAL INDENTURE
	 
	 	 
	Exhibit F

	 	SECURITY AGREEMENT
	 
	 	 
	Exhibit G

	 	COLLATERAL TRUST AGREEMENT






iv









 





          INDENTURE dated as of November 16, 2010 among Terremark Worldwide, Inc., a Delaware
corporation (the “Company”), the Initial Guarantors (as defined below) listed on the signature
pages hereto and The Bank of New York Mellon Trust Company, N.A., as trustee.



          The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its 9.500% Senior Secured Second Lien Notes due 2013 to be issued
in one or more series as provided in this Indenture. The Initial Guarantors have duly authorized
the execution and delivery of this Indenture to provide for a guarantee of the Second Lien Notes
and of certain of the Company’s obligations hereunder. All things necessary to make this Indenture
a valid agreement of the Company and the Initial Guarantors, in accordance with its terms, have
been done.



          The Initial Guarantors are engaged in a related and mutually interdependent business with the
Company and, as a consequence, will derive substantial direct and indirect financial and business
advantages and benefits from the Company’s issuance of the Second Lien Notes, as guaranteed by the
Initial Guarantors.



          The Company, the Guarantors and the Second Lien Trustee (as defined below) agree as follows
for the benefit of each other and for the equal and ratable benefit of the Holders (as defined
below) of the 9.500% Senior Secured Second Lien Notes due 2013:



ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01. Definitions.













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



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



          (1) Indebtedness of any other Person existing at the time such other Person is merged or
consolidated with or into or became a Restricted Subsidiary of such specified Person, whether or
not such Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and



          (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person;


provided that any Indebtedness of such Person that is redeemed, defeased, retired or otherwise
repaid at the time of or immediately upon consummation of the transaction by which such other


 









 






Person is merged or consolidated with or into, or becomes a Restricted Subsidiary of, such
specified Person, or such assets are acquired from such Person, will not be Acquired Debt.




          “Additional Interest” means all additional interest owing on the Second Lien Notes pursuant to
the Registration Rights Agreement. The Company shall be responsible for calculating Additional
Interest in each instance. The Second Lien Trustee shall have no responsibility for calculating
and/or verifying the amount of any Additional Interest.



          “Additional First Lien Notes” means an unlimited maximum aggregate principal amount of First
Lien Notes issued under the First Lien Notes Indenture in accordance with Sections 2.02, 4.09 and
4.12 thereof.



          “Additional Second Lien Notes” means an unlimited maximum aggregate principal amount of Second
Lien Notes (other than the Second Lien Notes issued on the date hereof) issued under this Indenture
in accordance with Sections 2.02, 4.09 and 4.12 hereof.



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



          “After-Acquired Property” means any property of the Company or any Guarantor acquired after
the Issue Date of a type that secures the Note Obligations, excluding any Excluded Assets.



          “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, Euroclear and Clearstream
that apply to such transfer or exchange.



          “Asset Sale” means:



          (1) the sale, lease, conveyance or other disposition of any assets or rights, provided that
the sale, lease, conveyance or other disposition of all or substantially all of the assets or
rights of the Company and its Subsidiaries taken as a whole shall be governed by Section 4.14
and/or Section 5.01 of this Indenture and not by Section 4.10 of this Indenture; and




     (2) the issuance or sale of Equity Interests in any of the Company’s Restricted
Subsidiaries.



2









 




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





     (1) any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $10.0 million;




     (2) a transfer of assets between or among the Company and its Restricted Subsidiaries;




     (3) an issuance of Equity Interests by a Subsidiary to the Company or to another
Restricted Subsidiary;




     (4) any sale or disposition consisting of worn-out, obsolete, retired or otherwise
unsuitable equipment or facilities in the ordinary course of business;




     (5) the sale, transfer, license or lease of equipment, inventory or other assets in the
ordinary course of business;




     (6) the sale or other disposition of cash or Cash Equivalents;




     (7) a Restricted Payment or Permitted Investment that is permitted by Section 4.07 of
this Indenture;




     (8) sales or grants of licenses or sublicenses to use patents, trade secrets, know-how
and other intellectual property to the extent not materially interfering with the business
of the Company and the Restricted Subsidiaries taken as a whole;




     (9) dispositions of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in a bankruptcy or similar
proceeding and exclusive of factoring or similar arrangements;




     (10) the granting of a Lien permitted by this Indenture and the Security Documents;




     (11) the unwinding of any Hedging Obligations;




     (12) foreclosures on assets not constituting Collateral;




     (13) the sale or other disposition of Equity Interests of, or any Investment in, an
Unrestricted Subsidiary; and



          (14) the sale of Restricted Investments made by the Company or any Restricted Subsidiary after
the Issue Date, if such Restricted Investments were (a) received in exchange for, or purchased out
of the net cash proceeds of the sale (other than to a Subsidiary of the Company) of, Capital Stock
of the Company (other than Disqualified Stock) or (b) received in the form of,
or were purchased from the proceeds of, a contribution of common equity capital to the
Company; provided, that such Restricted Investment was made within 60 days after the receipt



3









 







by the
Company or a Restricted Subsidiary of the net cash proceeds from such sale or contribution, as the
case may be.



          “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated by the Company using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with GAAP.



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



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



          “Board of Directors” means:




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




     (2) with respect to a partnership, the board of directors of the corporation which is
the general partner of the partnership;




     (3) with respect to a limited liability company, board of managers of the limited
liability company; or




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



          “Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of
the Company, to have been duly adopted by the Board of Directors of the Company, and to be in full
force and effect on the date of such certification.



          “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York, New York, or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is not a Business Day at a place
of payment, payment may be made at that place on the next succeeding day that is a Business Day.



          “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be
classified and accounted for as a capitalized lease obligation on a balance sheet in
accordance with GAAP.



4









 





          “Capital Stock” means:




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




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




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




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



          “Cash Equivalents” means:




     (1) securities issued by or directly and fully guaranteed or insured by the federal
government of the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the federal government of the United States is
pledged in support of those securities) having maturities of not more than 365 days from the
date of acquisition;




     (2) certificates of deposit and eurodollar time deposits with maturities of 365 days or
less from the date of acquisition, bankers’ acceptances or bearer deposit notes with
maturities not exceeding 365 days and overnight bank deposits, in each case, with any lender
party to the Credit Facilities, if any, or with any United States commercial bank having
capital and surplus in excess of $500.0 million and a rating at the time of acquisition
thereof of P-2 or better from Moody’s or A-3 or better from S&P;




     (3) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (1) and (2) above entered into with any
financial institution meeting the qualifications specified in clause (2) above;




     (4) commercial paper rated at least P-1 by Moody’s or A-1 by S&P and in each case
maturing within 270 days after the date of acquisition; and




     (5) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (4) of this definition.



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




     (1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in
Section 13(d)(3) of the Exchange Act);



5









 






     (2) the adoption or approval by the Board of Directors of the Company or its
stockholders of a plan relating to the liquidation or dissolution of the Company;




     (3) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as defined above) becomes the
Beneficial Owner, directly or indirectly, of more than 50% the Voting Stock of the Company,
measured by voting power rather than number of shares;




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




     (5) the Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company or such other Person
is converted into or exchanged for cash, securities or other property, other than any such
transaction where (A) the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock)
of the surviving or transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately after giving effect to
such issuance) and (B) immediately after such transaction, no “person” or “group” (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act) becomes, directly or
indirectly, the Beneficial Owner of 50% or more of the voting power of the Voting Stock of
the surviving or transferee Person.



          “Class” means (1) in the case of Priority Lien Debt, every Series of Priority Lien Debt, taken
together, and (2) in the case of Junior Lien Debt, every Series of Junior Lien Debt, taken
together.



          “Clearstream” means Clearstream Banking, société anonyme, Luxembourg, and any successor
thereto.



          “Closing Date” means November 16, 2010.



          “Collateral” means all assets or property, now owned or hereafter acquired by the Parent, the
Company or any of the Subsidiary Guarantors, to the extent such assets or property are pledged,
mortgaged or assigned or purported to be pledged, mortgaged or assigned, or are required to be
pledged, mortgaged or assigned under the Security Documents to the Collateral Trustee, together
with the proceeds and products thereof, until such time as the Liens created by the Security
Documents are released in accordance with their terms;


provided, that the Collateral will not at any time include any property that is, at such time, an
Excluded Asset.




          “Collateral Trust Agreement” means the Collateral Trust Agreement entered into by the Company,
the Initial Guarantors, The Bank of New York Mellon Trust Company,
N.A., as trustee under the First Lien Notes Indenture, the Second Lien Trustee and the
Collateral Trustee on June 24, 2009 and as amended, restated, supplemented or modified as of the
date hereof and attached hereto as Exhibit G.



6









 





          “Collateral Trustee” means U.S. Bank National Association, in its capacity as Collateral
Trustee under the Collateral Trust Agreement, together with its successors in such capacity.



          “Collateral Trustee’s Liens” means a Lien granted to the Collateral Trustee as security for
Secured Obligations.



          “Company” has the meaning set forth in the Preamble and includes any successor that replaces
Terremark Worldwide, Inc. pursuant to Section 5.01 hereof and thereafter means the successor.



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




     (1) provision for taxes of such Person and its Restricted Subsidiaries for such period
based on income or profits, to the extent that such provisions for taxes was deducted in
computing such Consolidated Net Income; plus




     (2) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, commissions, discounts
and other fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net of the effect of all payments made or received pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing such
Consolidated Net Income; plus




     (3) the amount of any minority interest expense (less the amount of any cash dividends
paid in such period to holders of such minority interests); plus




     (4) depreciation and amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid in a prior
period), accretion and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such Consolidated Net
Income; plus




     (5) any expenses or charges (other than depreciation or amortization expense) related
to any Equity Offering, Permitted Investment, acquisition, recapitalization or Indebtedness
permitted under this Indenture (in each case, whether or not consummated),
including (i) such fees, expenses or charges relating to the offering of the Second
Lien Notes and (ii) any amendment or other modification of the Second Lien Notes; plus



7









 






     (6) the amount of any restructuring charge, including any one-time costs incurred in
connection with acquisitions after the Issue Date and costs related to the closure and/or
consolidation of facilities; plus




     (7) any net loss (or minus any net gain) resulting in such period from Hedging
Obligations or currency transaction gains or losses relating to currency remeasurements
(including any net loss or gain resulting from hedge agreements for currency exchange risk);
plus




     (8) non-cash expenses representing stock-based compensation and share-settled
liabilities; plus




     (9) other non-recurring or extraordinary charges or expenses of the Company and its
Subsidiaries reducing such Consolidated Net Income; and minus




     (10) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business and any such items which represent
the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior
period where such accrual or reserve is no longer required,




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




     Notwithstanding the preceding, the provision for taxes based on the income or profits
of, the consolidated interest expense of and the depreciation and amortization and other
non-cash expenses of, a Restricted Subsidiary of the Company shall be added to Consolidated
Net Income to compute Consolidated Cash Flow of the Company (A) in the same proportion that
the Net Income of such Restricted Subsidiary was added to compute such Consolidated Net
Income and (B) only to the extent that a corresponding amount would be permitted at the date
of determination to be dividended or distributed to the Company by such Restricted
Subsidiary without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its stockholders, members, managers or partners, as
applicable.



          “Consolidated Net Income” means, with respect to any specified 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 that:




     (1) the Net Income (but not loss) of any Person 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 specified Person or a Restricted Subsidiary of the Person;




     (2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument,



8









 







judgment,
decree, order, statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, members, managers or partners, as applicable;




     (3) the Net Income of any Person acquired during the specified period for any period
prior to the date of such acquisition shall be excluded;




     (4) the cumulative effect of a change in or adoption of accounting principles shall be
excluded;




     (5) any after-tax effect of net income (or loss) from disposed or discontinued
operations and any net after-tax gains or losses on disposal of, disposed, abandoned or
discontinued operations shall be excluded;




     (6) unrealized non-cash gains and losses with respect to Hedging Obligations shall be
excluded;




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




     (8) any net after-tax gain or loss in connection with the unwinding of Hedging
Obligations related to Indebtedness repaid with the proceeds from the Incurrence of the
Second Lien Notes will be excluded.



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




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




     (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors or a committee whose members are comprised of such
Continuing Directors who were members of such Board at the time of such nomination or
election.



          “Corporate Trust Office” means the principal office of the Second Lien Trustee at which at any
time its corporate trust business shall be administered, which office at the date hereof is located
at 10161 Centurion Parkway North, Jacksonville, Florida 32256, Attention: Corporate Trust
Administration, or such other address as the Second Lien Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate trust office of any successor
Second Lien Trustee (or such other address as such successor Second Lien Trustee may designate from
time to time by notice to the Holders and the Company).



          “Credit Facilities” means one or more debt facilities, or other financing arrangements
(including, without limitation, commercial paper facilities or indentures) providing for revolving
credit loans, term loans, letters of credit or other long-term indebtedness, including
any notes, mortgages, guarantees, collateral documents, instruments, indentures and agreements
executed in connection therewith, and any amendments, supplements, modifications, extensions,
renewals, restatements or refundings thereof and any indentures or credit facilities or commercial



9









 







paper facilities that replace, refund or refinance any part of the loans, notes, other credit
facilities or commitments thereunder, including any such replacement, refunding or refinancing
facility or indenture that increases the amount permitted to be borrowed thereunder or alters the
maturity thereof (provided that such increase in borrowings is permitted under Section 4.09) or
adds guarantors as additional borrowers or guarantors thereunder and whether by the same or any
other agent, lender or group of lenders.



          “Currency Agreement” means any financial arrangement entered into between a Person (or its
Restricted Subsidiaries) and a counterparty on a case by case basis in connection with a foreign
exchange futures contract, currency swap agreement, currency option or currency exchange or other
similar currency related transactions, the purpose of which is to mitigate or eliminate its
exposure to fluctuations in exchange rates and currency values.



          “Custodian” means the Second Lien Trustee, as custodian with respect to the Second Lien Notes
in global form, or any successor entity thereto.



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



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



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



          “Disqualified Stock” means, with respect to any Person, any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible, or for which it is exchangeable, in
each case at the option of the holder of the Capital Stock), 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 of the Capital Stock, in whole or in part, prior to the date
that is one year after the date on which the Second Lien Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock
if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption complies with
Section 4.07 or otherwise requires the prior repayment in full of the Note Obligations. The term
“Disqualified Stock” shall also include any options, warrants or other rights that are convertible
into Disqualified Stock or that are redeemable at the
option of the holder, or required to be redeemed, prior to the date that is one year after the
date on which the Second Lien Notes mature.



10









 





          “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United
States or any State, district or territory thereof.



          “equally and ratably” means, in reference to sharing of Liens or proceeds thereof as between
holders of Secured Debt Obligations within the same Class after the repayment of amounts payable to
the Collateral Trustee under the Collateral Trust Agreement and the Priority Lien Representatives
or the Junior Lien Representatives, as applicable, in accordance with the applicable Secured Debt
Document that such Liens or proceeds:




     (1) shall be allocated and distributed first to the Secured Debt Representative for
each outstanding Series of Secured Debt within that Class, for the account of the holders of
such Series of Secured Debt, ratably in proportion to the principal of, and interest and
premium (if any) and reimbursement obligations (contingent or otherwise) with respect to
letters of credit, if any, outstanding (whether or not drawings have been made under such
letters of credit) forming part of, and Hedging Obligations to the extent constituting
Secured Debt pursuant to the terms of, each outstanding Series of Secured Debt Obligations
within that Class when the allocation or distribution is made; and thereafter




     (2) shall be allocated and distributed (if any remain after payment in full of all of
the principal of, and interest and premium (if any) and reimbursement obligations
(contingent or otherwise) with respect to letters of credit, if any, outstanding (whether or
not drawings have been made on such letters of credit) forming part of, and Hedging
Obligations to the extent constituting Secured Debt Obligations pursuant to the terms of,
each outstanding Series of Secured Debt within that Class) to the Secured Debt
Representative for each outstanding Series of Secured Debt within that Class, for the
account of the holders of any remaining Secured Debt Obligations within that Class, ratably
in proportion to the aggregate unpaid amount of such remaining Secured Debt Obligations
within that Class due and demanded (with written notice to the applicable Secured Debt
Representative and the Collateral Trustee) prior to the date such distribution 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).



          “Equity Offerings” means any public or private sale of equity securities of the Company (other
than Disqualified Stock) other than:




     (1) offerings related to equity securities issuable under any employee benefit plan of
the Company or any of its Restricted Subsidiaries; and




     (2) issuances to any Subsidiary of the Company.




     “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, or
its successor.



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



11









 





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



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



          “Excluded Assets” means:




     (1) the interests of the Company or any Guarantor in contracts with government
authorities relating to the Permitted Business;




     (2) all real estate leasehold interests of the Company or any Guarantor existing on
June 24, 2009; and




     (3) all real estate leasehold interests of the Company or any Guarantor acquired after
June 24, 2009 requiring consent of the lessor to create a Lien on such interests for which,
after using commercially reasonable efforts, the Company or such Guarantor was unable to
obtain such consent.



          “Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the First Lien Notes, the Second Lien Notes or the respective guarantees
thereof) in existence on the Issue Date, until such amounts are repaid.



          “Fair Market Value” means, with respect to any asset, property or service, the price that
could be negotiated in an arm’s length free market transaction, for cash, between a willing seller
and a willing buyer, neither of whom is under pressure or compulsion to complete the transaction.
Unless otherwise specified in this Indenture, Fair Market Value shall be determined, except as
otherwise specified, (i) if the Fair Market Value is equal to or less than $2.5 million, by the
principal financial officer of the Company acting reasonably and in good faith and (ii) if the Fair
Market Value exceeds $5.0 million, by the Board of Directors of the Company acting reasonably and
in good faith and shall be evidenced by a Board Resolution attached to an Officers’ Certificate.



          “First Lien Notes” means the Company’s 12% Senior Secured Notes due 2017 issued pursuant to
the First Lien Notes Indenture.



          “First Lien Notes Indenture” means the indenture, dated as of June 24, 2009, by and among the
Company, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as First
Lien Trustee, as supplemented from time to time, pursuant to which the First Lien Notes were
issued.



          “First Lien Trustee” means The Bank of New York Mellon Trust Company, N.A., a national banking
association, until a successor replaces it in accordance with the
applicable provisions of the First Lien Notes Indenture and thereafter means the successor
serving thereunder.



          “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person and its Restricted



12









 







Subsidiaries for such period
to the Fixed Charges of such Person and its Restricted Subsidiaries for such period. In the event
that the specified Person or any of its Restricted Subsidiaries Incurs, repays, repurchases or
redeems any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or
redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such
Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of Disqualified Stock or Preferred Stock, and the use of the proceeds therefrom as if
the same had occurred at the beginning of the applicable four-quarter reference period.



          In addition, for purposes of calculating the Fixed Charge Coverage Ratio:




     (1) acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by the
specified Person or any of its Restricted Subsidiaries (or by any Person that has
subsequently become a Restricted Subsidiary or has subsequently merged or consolidated with
or into such Person or any of its Restricted Subsidiaries) including through mergers or
consolidations and including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the Calculation
Date shall be given pro forma effect as if they had occurred on the first day of the
four-quarter reference period in accordance with Regulation S-X under the Securities Act,
but without giving effect to clause (3) of the provision set forth in the definition of
Consolidated Net Income;




     (2) Fixed Charges consisting of non-cash items arising from changes in or the adoption
of accounting principles shall be excluded;




     (3) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, disposed of prior to the Calculation Date, shall be excluded;




     (4) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges shall not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date;




     (5) consolidated interest expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Calculation Date (taking into account
any interest rate option, swap, cap or similar agreement applicable to
such Indebtedness if such agreement has a remaining term in excess of 12 months or, if
shorter, at least equal to the remaining term of such Indebtedness) had been the applicable
rate for the entire period; and



13









 






     (6) whenever pro forma effect is to be given to any event, the pro forma calculations
shall be made in good faith by a responsible financial or accounting officer of the Company.



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




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers’ acceptance
financings, and net of the effect of all payments made or received pursuant to Hedging
Obligations under Interest Rate Agreements; plus




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




     (3) any interest expense on Indebtedness of another Person that is guaranteed by such
Person (other than such Person or its Restricted Subsidiaries) or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such guarantee or Lien is called upon; plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock of such person or Preferred Stock of any of its
Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests (other than Disqualified Stock) of such Person or to such Person or one of its
Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, provincial, state and
local statutory tax rate of such Person or any of its Restricted Subsidiaries, expressed as
a decimal,




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



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



          “GAAP” means generally accepted accounting principles, consistently applied, which are in
effect in the United States from time to time or any successor principles so in effect; provided
that GAAP shall not give effect to the effect of FASB No. APB14-1.



          “Global Note Legend” means the legend set forth in Section 2.07(g)(ii), 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 Sections 2.01, 2.07(b), 2.07(d) or 2.07(f) of this Indenture.



14









 





          “Government Securities” means securities that are direct obligations of the United States of
America for the timely payment of which its full faith and credit 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, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness.



          “Guarantors” means each of:



          (1) the Initial Guarantors; and




     (2) any other Restricted Subsidiary that executes a Note Guarantee in accordance with
the provisions of this Indenture;


and their respective successors and assigns until released from their obligations under their Note
Guarantees and this Indenture in accordance with the terms of this Indenture.




          “Hedging Obligations” means, with respect to any specified Person, the outstanding amount of
all obligations of such Person and its Restricted Subsidiaries under all Currency Agreements and
all Interest Rate Agreements, together with all interest, fees and other amounts payable thereon or
in connection therewith.



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



          “IAI 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 and registered in the
name of the Depositary or its nominee issued in a denomination equal to the outstanding principal
amount of the Second Lien Notes sold to Institutional Accredited Investors, if any, to the extent
required by the Applicable Procedures.



          “Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, guarantee or
otherwise become directly or indirectly liable for or with respect to, or become responsible for,
the payment of, contingently or otherwise, such Indebtedness (and “Incurrence” and “Incurred” shall
have meanings correlative to the foregoing); provided that (1) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Company shall be deemed to
be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the
Company and (2) neither the accrual of interest nor the accretion of original issue discount nor
the payment of interest in the form of additional Indebtedness with the same terms and the payment
of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same
class of Disqualified Stock or Preferred Stock (to the extent provided for when the Indebtedness or
Disqualified Stock or Preferred Stock on which such interest or dividend is paid was originally
issued) shall be considered an Incurrence of
Indebtedness; provided that in each case the amount thereof is for all other purposes included
in the Fixed Charges and Indebtedness of the Company or its Restricted Subsidiary as accrued.



15









 





          “Indebtedness” means, with respect to any specified Person at any date, any indebtedness of
such Person, whether or not contingent, without duplication:




     (1) in respect of borrowed money;




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




     (3) in respect of banker’s acceptances;




     (4) representing Capital Lease Obligations and Attributable Debt;




     (5) representing the balance deferred and unpaid of the purchase price of any property,
except any such balance that constitutes an accrued expense or trade payable;




     (6) representing any Hedging Obligations; or



          (7) in respect of all conditional sale obligations and all obligations under title retention
agreements,


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes (x) all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person), provided that the amount of such Indebtedness shall be the lesser of (A)
the Fair Market Value of such asset at such date of determination and (B) the amount of such
Indebtedness, and (y) to the extent not otherwise included, the guarantee by the specified Person
of any indebtedness of any other Person.




          The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at
such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation, and shall be:



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



          (2) the principal amount of the Indebtedness, together with any interest on the Indebtedness
that is more than 30 days past due, in the case of any other Indebtedness.



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



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



          “Initial Guarantors” means all of the Domestic Subsidiaries of the Company existing on the
Issue Date.



16









 





          “Initial Mortgaged Property” means those properties owned in fee by the Issuer or Guarantors
and commonly known as 2970/3000 Corvin Drive, Santa Clara, California 95051; 50 NE 9th
Street, Miami, Florida 33132; and 14490 Rabbit Run, Culpeper, Virginia 22701.



          “Initial Purchaser” means Credit Suisse Securities (USA) LLC.



          “insolvency or liquidation proceeding” means:




     (1) any case commenced by or against the Company or any Guarantor under Title 11, U.S.
Code, or any similar federal or state law for the relief of debtors, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or
liabilities of the Company or any Guarantor, any receivership or assignment for the benefit
of creditors relating to the Company or any Guarantor or any similar case or proceeding
relative to the Company or any Guarantor or its creditors, as such, in each case whether or
not voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any Guarantor, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency; or




     (3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any Guarantor are determined and any payment or distribution is
or may be made on account of such claims.



          “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.



          “Intellectual Property Security Agreement” means the Intellectual Property Security Agreement
to be dated on or about the Issue Date among the Grantors contained therein and the Collateral
Trustee.



          “Interest Rate Agreement” means any financial arrangement entered into between a Person (or
its Restricted Subsidiaries) and a counterparty on a case by case basis in connection with interest
rate swap transactions, interest rate options, cap transactions, floor transactions, collar
transactions and other similar interest rate protection related transactions, the purpose of which
is to mitigate or eliminate its exposure to fluctuations in interest rates.



          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time.



          “Investment Company Act” means the Investment Company Act of 1940, as amended.



          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P.



17









 





          “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans or other extensions of credit
(including guarantees or other obligations), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or
other securities, together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. “Investments” shall exclude extensions of trade
credit on commercially reasonable terms in the ordinary course of business. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any
direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition equal to the Fair
Market Value of the Investments in such Subsidiary that were not sold or disposed of. The
acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an
Investment in a third Person shall be deemed to be an Investment by the Company or such Restricted
Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investment held
by the acquired Person in such third Person.



          “Issue Date” means the date of original issuance of the Second Lien Notes under this
Indenture.



          “Junior Lien” means a Lien granted by a security document to the Collateral Trustee, at any
time, upon any Collateral to secure Junior Lien Obligations.



          “Junior Lien Debt” means:




     (1) (A) the Second Lien Notes issued by the Company under this Indenture on the Issue
Date, any Additional Second Lien Notes issued under this Indenture, any Exchange Notes
related to such Second Lien Notes or Additional Second Lien Notes and the Note Guarantee of
each Guarantor, and (B) any Indebtedness (including letters of credit and reimbursement
obligations with respect thereto) of the Company or any Guarantor that is secured on a
subordinated basis to the Priority Lien Debt by a Junior Lien that was permitted to be
incurred and so secured under each applicable Secured Debt Document; provided that:




     (a) on or before the date on which such Indebtedness is incurred by the Company or
such Guarantor, such Indebtedness is designated by the Company, in accordance with the
Collateral Trust Agreement, as “Junior Lien Debt” for the purposes of the Secured Debt
Documents and the Collateral Trust Agreement; provided that no Series of Secured Debt
may be designated as both Junior Lien Debt and Priority Lien Debt;




     (b) such Indebtedness is governed by an indenture, credit agreement or other
agreement that includes a Lien Sharing and Priority Confirmation; and



18









 






     (c) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Liens to secure such
Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction of
such requirements shall be conclusively established if the Company delivers to the
Collateral Trustee an officers’ certificate stating that such requirements have been
satisfied and that such Indebtedness is “Junior Lien Debt”); and




     (2) Hedging Obligations of the Company or any Guarantor incurred pursuant to
arrangements provided by the holders or former holders (or Affiliates thereof) of, or agents
or former agents (or Affiliates thereof) in respect of, Junior Lien Debt to hedge or manage
interest rate risk with respect to such Junior Lien Debt; provided that, pursuant to the
terms of the Junior Lien Documents, such Hedging Obligations are secured by a Junior Lien on
all of the assets and properties that secure the Indebtedness in respect of which such
Hedging Obligations are incurred.



          “Junior Lien Documents” means, collectively, this Indenture and any additional indenture,
credit agreement or other agreement governing a Series of Junior Lien Debt and the security
documents that create or perfect Liens securing Junior Lien Obligations.



          “Junior Lien Obligations” means Junior Lien Debt and all other Obligations in respect thereof.



          “Junior Lien Representative” means (1) the Second Lien Trustee, in the case of the Second Lien
Notes, or (2) in the case of any other Series of Junior Lien Debt, the trustee, agent or
representative of the holders of such Series of Junior Lien Debt who (a) is appointed as a Junior
Lien Representative (for purposes related to the administration of the security documents) pursuant
to the indenture, credit agreement or other agreement governing such Series of Junior Lien Debt,
together with its successors in such capacity, and (b) has become a party to the Collateral Trust
Agreement by executing a joinder in the form required under the Collateral Trust Agreement.



          “Leasing Deliverables” shall include (i) (A) a memorandum of lease in recordable form with
respect to such leasehold interest, executed and acknowledged by the lessor of such leasehold
interest, or (B) evidence that the applicable lease with respect to such leasehold interest or a
memorandum thereof has been recorded in all places necessary, in the Collateral Trustee’s
reasonable judgment, to give constructive notice to third-party purchasers of such leasehold
interest, and (ii) any lessor consent or approval of such mortgage as may be required pursuant to
the terms of the applicable lease with respect to such leasehold interest.



          “Legended Regulation S Global Note” means a global Second Lien Note in the form of Exhibit A
hereto bearing the Global Note Legend, the OID Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal to the outstanding principal amount at maturity of the Second Lien Notes
initially sold in reliance on Rule 903 of Regulation S.



19









 





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



          “Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
charge, security interest or encumbrance upon or with respect to any property of any kind, whether
or not filed, recorded or otherwise perfected under applicable law, including any conditional sale
or other title retention agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.



          “Lien Sharing and Priority Confirmation” means:




     (1) as to any Series of Priority Lien Debt, the written agreement enforceable against
the holders of such Series of Priority Lien Debt, as set forth in the applicable Secured
Debt Document:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Priority Lien Debt and each existing and future Priority Lien
Representative that all Priority Lien Obligations shall be and are secured equally
and ratably by all Priority Liens at any time granted by the Company or any
Guarantor to secure any Obligations in respect of such Series of Priority Lien Debt,
and that all such Priority Liens shall be enforceable by the Collateral Trustee for
the benefit of all holders of Priority Lien Obligations equally and ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Priority Lien Debt and Series of Junior Lien Debt, and each existing and
future Priority Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Priority Lien Debt are bound by the
provisions of the Collateral Trust Agreement, including the provisions relating to
the ranking of Priority Liens and the order of application of proceeds from
enforcement of Priority Liens; and




     (c) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other security documents in
respect of the Secured Debt Obligations,




     (2) as to any Series of Junior Lien Debt, the written agreement enforceable against the
holders of such Series of Junior Lien Debt, as set forth in the applicable Secured Debt
Document:




     (a) for the enforceable benefit of all holders of each existing and future
Series of Junior Lien Debt and Series of Priority Lien Debt and each existing and
future Junior Lien Representative and Priority Lien Representative, that all Junior
Lien Obligations shall be and are secured equally and ratably by all Junior Liens at
any time granted by the Company or any Guarantor to secure any



20









 






Obligations in respect of such Series of Junior Lien Debt, and that all such
Junior Liens shall be enforceable by the Collateral Trustee for the benefit of all
holders of Junior Lien Obligations equally and ratably;




     (b) for the enforceable benefit of all holders of each existing and future
Series of Priority Lien Debt and Series of Junior Lien Debt and each existing and
future Priority Lien Representative and Junior Lien Representative, that the holders
of Obligations in respect of such Series of Junior Lien Debt are bound by the
provisions of the Collateral Trust Agreement, including the provisions relating to
the ranking of Junior Liens and the order of application of proceeds from the
enforcement of Junior Liens; and




     (c) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other security documents in
respect of the Secured Debt Obligations.



          “Moody’s” means Moody’s Investors Services, Inc. or any successor to the rating agency
business thereof.



          “Mortgage” means a mortgage, deed of trust, deed to secure debt or similar document, together
with any assignment of leases and rents referred to therein, in each case in form and substance
reasonably satisfactory to the Collateral Trustee.



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




     (1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any sale of assets outside the ordinary course of
business of such Person; or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of its Restricted Subsidiaries; and




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



          “Net Proceeds” means the aggregate cash proceeds, received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of (1) the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking and brokerage fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, (2) taxes paid or payable as a result
of the Asset Sale, in each case, after taking into account any available tax credits or deductions
and any tax sharing arrangements, (3) amounts required to be applied to the repayment of
Indebtedness, other than Secured Obligations, secured by a Lien on the asset or assets that were
the subject of such Asset Sale, (4) any reserve for adjustment in respect of the sale price of such
asset or assets established in accordance with GAAP, (5) in the case of any Asset Sale by a
Restricted Subsidiary of the Company, payments to holders of Equity Interests in such Restricted



21









 




Subsidiary in such capacity (other than such Equity Interests held by the Company or any
Restricted Subsidiary thereof) to the extent that such payment is required to permit the
distribution of such proceeds in respect of the Equity Interests in such Restricted Subsidiary held
by the Company or any Restricted Subsidiary thereof and (6) appropriate amounts to be provided by
the Company or its Restricted Subsidiaries as a reserve against liabilities associated with such
Asset Sale, including, without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in accordance with GAAP; provided that
(a) excess amounts set aside for payment of taxes pursuant to clause (2) above remaining after such
taxes have been paid in full or the statute of limitations therefor has expired and (b) amounts
initially held in reserve pursuant to clause (6) no longer so held, shall, in the case of each of
subclause (a) and (b), at that time become Net Proceeds; provided that Cash Equivalents in which
the Company or a Restricted Subsidiary has an individual beneficial ownership shall not be deemed
to be received by the Company or a Restricted Subsidiary until such time as such Cash Equivalents
are free from any restrictions under agreements with the other beneficial owners of such Cash
Equivalents which prevent the Company or a Restricted Subsidiary from applying such cash and/or
Cash Equivalents to any use permitted by Section 4.10 hereof or to purchase Second Lien Notes.




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



          “Note Documents” means this Indenture, the Second Lien Notes, the Note Guarantees, the
Security Documents, and all other agreements related to this Indenture, the Second Lien Notes and
the Note Guarantees.



          “Note Guarantees” means a guarantee of the Second Lien Notes pursuant to this Indenture.



          “Note Obligations” means the Second Lien Notes, the Note Guarantees and all other Obligations
of any obligor under the Note Documents.



          “Obligations” means with respect to any Indebtedness of any Person (collectively, without
duplication):




     (1) all debt, financial liabilities and obligations of such Person of whatsoever nature
and howsoever evidenced (including principal, interest, fees, reimbursement obligations,
cash cover obligations, penalties, indemnities and legal and other expenses, whether due
after acceleration or otherwise) to the providers or holders of such Indebtedness or to any
agent, trustee or other representative of such providers or holders of such Indebtedness
under or pursuant to each agreement, document or instrument evidencing, securing,
guaranteeing or relating to such Indebtedness, financial liabilities or obligations relating
to such Indebtedness (including Secured Debt Documents applicable to such Indebtedness (if
any)), in each case, direct or indirect, primary or secondary, fixed or contingent, now or
hereafter arising out of or relating to any such agreement, document or instrument;



22









 






     (2) any and all sums advanced by the Collateral Trustee or any other Person in order to
preserve the Collateral or any other collateral securing such Indebtedness or to preserve
the Liens and security interests in the Collateral or any other collateral, securing such
Indebtedness; and




     (3) the costs and expenses of collection and enforcement of the obligations referred to
in clauses (1) and (2), including:




     (a) the costs and expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on any Collateral or any other
collateral;




     (b) the costs and expenses of any exercise by the Collateral Trustee or any
other Person of its rights under the Security Documents or any other security
documents; and




     (c) reasonable attorneys’ fees and court costs.



          “Obligor” means the Company, the Guarantors and each other Person (if any) that at any time
provides collateral security for any Secured Obligations.



          “Offering Circular” means the final offering circular of the Company for the offering of the
Second Lien Notes, dated November 8, 2010.



          “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 Chief Legal
Officer, any Senior Vice President, the Treasurer or the Secretary of such Person.



          “Officers’ Certificate” means a certificate signed on behalf of the Company by at least two
Officers of the Company, one of whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of the Company that meets the
requirements of Section 13.05 hereof.



          “OID Legend” means the legend set forth in Section 2.07(g)(iii) hereof to be placed on all
Second Lien Notes issued under this Indenture that have more than a de minimis amount of original
issue discount for U.S. federal income tax purposes.



          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Second Lien Trustee (who may be counsel to or an employee of the Company) that meets the
requirements of Section 13.05 hereof.



          “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to
DTC, shall include Euroclear and Clearstream).



          “Permitted Assets” means (1) non-current assets that are used or useful in the Permitted
Business or (2) substantially all of the assets of a Permitted Business or any Capital



23









 




Stock of a Person engaged in a Permitted Business so long as following the acquisition of such
Capital Stock such Person is a Restricted Subsidiary of the Company.




          “Permitted Business” means any business conducted or proposed to be conducted (as described in
the Offering Circular) by the Company and its Restricted Subsidiaries on the Issue Date and other
businesses complementary, reasonably related or ancillary thereto or a reasonable extension
thereof.



          “Permitted Investments” means, without duplication:




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




     (2) any Investment in Cash Equivalents;




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




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




     (b) such Person is merged or consolidated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company;




     (4) any Investment existing on or made prior to the Issue Date;




     (5) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;




     (6) any Investments received in compromise or resolution of (A) obligations of trade
creditors or customers that were incurred in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of any trade creditor or customer; or (B) litigation, arbitration or other
disputes with Persons who are not Affiliates;




     (7) Hedging Obligations not for speculative purposes;




     (8) loans or advances made to any officer, director or employee of the Company or any
of its Restricted Subsidiaries; provided, such loans do not exceed $1.0 million at any one
time outstanding;




     (9) endorsements of negotiable instruments and documents in the ordinary course of
business;




     (10) pledges or deposits permitted under clause (16) of the definition of Permitted
Liens;



24









 






     (11) repurchases of the Second Lien Notes; and




     (12) other Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this clause (12)
since the Issue Date, not to exceed the greater of (a) $15.0 million and (b) 2.5% of Total
Assets, at any one time outstanding.



          “Permitted Liens” means, as of any date:




     (1) (a) Priority Liens on the Collateral in favor of the Collateral Trustee equally and
ratably securing (i) the First Lien Notes and the note guarantees thereof issued on June 24,
2009, (ii) Obligations under Credit Facilities (including the First Lien Notes issued on
April 28, 2010) in aggregate amount at any one time outstanding not to exceed the amount of
Indebtedness permitted to be Incurred under Section 4.09(b)(i) hereof, and (iii) any other
Indebtedness; provided that with respect to this clause (iii) after giving effect to the
Incurrence of such Indebtedness and the application of the proceeds therefrom, the Secured
Leverage Ratio at the time of Incurrence would have been no more than 3.75 to 1, determined
on a pro forma basis as if such Indebtedness had been Incurred at the beginning of the
Company’s most recently ended four fiscal quarters for which internal financial statements
are available; and (b) Junior Liens on the Collateral in favor of the Collateral Trustee
securing Indebtedness (including the Second Lien Notes) Incurred pursuant to
Section 4.09(b)(xv) hereof;




     (2) Liens in favor of the Company or any of the Guarantors;




     (3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Restricted Subsidiary of the Company; provided
that such Liens were in existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged into or consolidated
with the Company or the Subsidiary;




     (4) Liens securing Hedging Obligations permitted by Section 4.09(b)(vii) hereof;




     (5) Liens for any judgment rendered, or claim filed, against the Company or any
Restricted Subsidiary which are being contested in good faith by appropriate proceedings
that do not constitute an Event of Default if during such contestation a stay of enforcement
of such judgment or claim is in effect;




     (6) Liens on property existing at the time of acquisition of the property by the
Company or any Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition and such Liens do not extend to any
assets other than the property being acquired;




     (7) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary course of
business;



25









 






     (8) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.09(b)(iv), covering only the assets acquired with such Indebtedness;




     (9) Liens existing on the Issue Date;




     (10) Liens for taxes, assessments or other governmental charges or claims that are not
yet due and payable or, if due and payable and delinquent, that are being contested by the
Company or a Restricted Subsidiary in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;




     (11) Liens arising in the ordinary course of business under operating agreements, joint
venture agreements, partnership agreements, division orders, and other agreements or arising
by operation of law, that are customary in the Permitted Business;




     (12) Liens incurred in the ordinary course of business with respect to obligations that
do not in the aggregate exceed $2.5 million at any one time outstanding;




     (13) Liens for any final judgments for the payment of money that do not constitute an
Event of Default;




     (14) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business (including in connection with
construction projects involving real property of the Company or its Subsidiaries) with
respect to sums which are not overdue for a period of more than 90 days or which are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person;




     (15) easements, rights-of-way, covenants, reservations, restrictions (including zoning
restrictions), licenses, encroachments, protrusions, building codes, minor defects or
irregularities in title and other similar encumbrances affecting real property that were not
incurred in connection with and do not secure debt and would be disclosed in an accurate
survey, which either exist as of the Issue Date or, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;




     (16) (i) customary banker’s liens, rights of setoff and other similar Liens existing
solely with respect to cash and Cash Equivalents on deposit in one or more accounts
(including securities accounts) maintained by the Company or its Subsidiaries, including
those granted in the ordinary course of business in favor of the bank or banks with which
such accounts are maintained securing amounts owing to such bank with respect to cash
management and operating account arrangements, including those involving pooled accounts and
netting arrangements; and (ii) Liens deemed to exist in



26









 






connection with investments in repurchase agreements meeting the requirements of Cash
Equivalents;




     (17) licenses, sublicenses, leases or subleases with respect to any assets granted to
third Persons in the ordinary course of business; provided that the same do not in any
material respect interfere with the business of the Company or its Subsidiaries or
materially detract from the value of the relative assets of the Company or its Subsidiaries;




     (18) Liens which arise under Article 4 of the Uniform Commercial Code in any applicable
jurisdictions on items in collection and documents and proceeds related thereto;




     (19) precautionary filings of financing statements under the Uniform Commercial Code of
any applicable jurisdictions in respect of operating leases or consignments entered into by
the Company or its Subsidiaries in the ordinary course of business;




     (20) 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;




     (21) Liens incurred in connection with the purchase or shipping of goods or assets on
the related goods or assets and proceeds thereof in favor of the seller or shipper of such
goods or assets or pursuant to customary reservations or retentions of title arising in the
ordinary course of business and in any case not securing Indebtedness;




     (22) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), tenders, statutory obligations, surety bonds, stay, customs and appeal bonds,
government contracts, performance bonds, return of money bonds and other obligations of a
like nature incurred in the ordinary course of business;




     (23) Liens securing Permitted Refinancing Indebtedness in respect of Indebtedness
permitted to be Incurred under Section 4.09 hereof that was secured by Permitted Liens
pursuant to clauses (1), (3), (6), (8) and (9) above and securing the same or similar
property;




     (24) Liens on the assets of Foreign Subsidiaries securing Indebtedness of any Foreign
Subsidiary; and




     (25) Liens to secure Capital Lease Obligations permitted by Section 4.09(b)(xvii)
covering only the assets subject to such Capital Lease Obligation.



27









 





          “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:



          (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums incurred in connection
therewith);



          (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;



          (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Second Lien Notes or the Note Guarantees, such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity date of the Second
Lien Notes, and is subordinated in right of payment to the Second Lien Notes or the Note
Guarantees, as applicable, on terms at least as favorable, taken as a whole, to the Holders of the
Second Lien Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and



          (4) such Indebtedness is Incurred either by (a) the Company or (b) the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.



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



          “Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions upon liquidation.



          “Priority Lien” means a Lien granted by a security document to the Collateral Trustee, at any
time, upon any Collateral to secure Priority Lien Obligations.



          “Priority Lien Debt” means:




     (1) the First Lien Notes issued by the Company and outstanding under the First Lien
Notes Indenture on the Issue Date, any Additional First Lien Notes issued under the First
Lien Notes Indenture, any exchange notes related to such First Lien Notes or Additional
First Lien Notes and the note guarantee of the First Lien Notes made pursuant to the First
Lien Notes Indenture of each guarantor of the First Lien Notes;



28









 






     (2) any Indebtedness (including letters of credit and reimbursement obligations with
respect thereto) of the Company or any Guarantor that is secured equally and ratably with
the First Lien Notes by a Priority Lien that was permitted to be Incurred and so secured
under each applicable Secured Debt Document; provided, in the case of Indebtedness referred
to in this clause (2), that:




     (a) on or before the date on which such Indebtedness is Incurred by the Company or
such Guarantor, such Indebtedness is designated by the Company, in accordance with the
Collateral Trust Agreement, as “Parity Lien Debt” for the purposes of the Secured Debt
Documents; provided that no Series of Secured Debt may be designated as both Priority
Lien Debt and Junior Lien Debt;




     (b) such Indebtedness is governed by an indenture, credit agreement or other
agreement that includes a Lien Sharing and Priority Confirmation; and




     (c) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Lien to secure such
Indebtedness or Obligations in respect thereof are satisfied (and the satisfaction of
such requirements shall be conclusively established if the Company delivers to the
Collateral Trustee an Officers’ Certificate stating that such requirements have been
satisfied and that such notes or such Indebtedness is “Parity Lien Debt”); and




     (3) Hedging Obligations of the Company or any Guarantor incurred pursuant to
arrangements provided by the holders (or Affiliates thereof) of, or agents or former agents
(of Affiliates thereof) in respect of, the Priority Lien Debt to hedge or manage interest
rate risk with respect to such Priority Lien Debt; provided that, pursuant to the terms of
the Priority Lien Documents, such Hedging Obligations are secured by a Priority Lien on all
of the assets and properties that secure the Indebtedness in respect of which such Hedging
Obligations are incurred.



          “Priority Lien Documents” means the First Lien Notes Indenture and any additional indenture,
credit agreement or other agreement governing a Series of Priority Lien Debt and the security
documents that create or perfect Liens securing Priority Lien Obligations.



          “Priority Lien Obligations” means Priority Lien Debt and all other Obligations in respect
thereof.



          “Priority Lien Representative” means (1) the First Lien Trustee, in the case of the First Lien
Notes, or (2) in the case of any other Series of Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Priority Lien Debt who (a) is appointed as a
Priority Lien Representative (for purposes related to the administration of the Security Documents)
pursuant to this Indenture, credit agreement or other agreement governing such Series of Priority
Lien Debt, together with its successors in such capacity, and (b) has become a party to the
Collateral Trust Agreement by executing a joinder in the form required under the Collateral Trust
Agreement.



29









 





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



          “Property” means any right or interest in or to property or assets of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including Capital Stock.



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



          “Qualified Customer” shall mean a customer of the Company or a Restricted Subsidiary that is
(i) an agency or instrumentality of the United States federal government, or (ii) is a business
entity that has generated at least $10 billion in revenue to external parties over such customer’s
preceding four fiscal quarters.



          “Rating Agency” means (1) each of Moody’s and S&P and (2) if Moody’s or S&P ceases to rate the
Second Lien Notes for reasons outside of the Company’s control, a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act
selected by the Company as a replacement agency for Moody’s or S&P, as the case may be.



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



          “Registration Rights Agreement” means (1) with respect to the Second Lien Notes issued on the
Issue Date, the Registration Rights Agreement, to be dated the Issue Date, among the Company, the
Initial Guarantors and the Initial Purchaser and (2) with respect to any Additional Second Lien
Notes, any registration rights agreement among the Company, the Guarantors and the other parties
thereto relating to the registration by the Company and the Guarantors of such Additional Second
Lien Notes under the Securities Act.



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



          “Regulation S Global Note” means a Legended Regulation S Global Note or a Unlegended
Regulation S Global Note, as appropriate.



          “Responsible Officer,” shall mean, when used with respect to the Second Lien Trustee, any
officer within the corporate trust department of the Second Lien Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any
other officer of the Second Lien Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’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 and
the OID Legend.



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



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



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



          “Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an
Unrestricted Subsidiary.



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



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



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



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



          “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC
business or any successor to the rating agency business thereof.



          “Sale and Leaseback Transaction” means, with respect to any Person, any transaction involving
any of the assets or properties of such Person whether now owned or hereafter acquired, whereby
such Person sells or otherwise transfers such assets or properties and then or thereafter leases
such assets or properties or any part thereof or any other assets or properties which such Person
intends to use for substantially the same purpose or purposes as the assets or properties sold or
transferred.



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



          “Second Lien Notes” means the 9.500% Senior Secured Second Lien Notes due 2013 of the Company
issued on the date hereof and any Additional Second Lien Notes, including any Exchange Notes. The
Second Lien Notes and the Additional Second Lien Notes, if any, shall be treated as a single class
for all purposes under this Indenture.



          “Second Lien Trustee” means The Bank of New York Mellon Trust Company, N.A., a national
banking association, until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.



          “Secured Debt Documents” means the Priority Lien Documents and the Junior Lien Documents.



          “Secured Debt Obligations” means Priority Lien Obligations and Junior Lien Obligations.



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          “Secured Debt Representative” means each Priority Lien Representative and each Junior Lien
Representative.



          “Secured Leverage Ratio” means with respect to any specified Person, as of the date of
calculation (the “Calculation Date”), the ratio of (1) the aggregate outstanding Indebtedness of
the Person and its Restricted Subsidiaries on the Calculation Date, on a consolidated basis,
secured by a Lien on any property or assets of the Company or its Restricted Subsidiaries
(including Capital Lease Obligations and Attributable Debt) to (2) the Consolidated Cash Flow of
such Person and its Restricted Subsidiaries for the most recently ended four fiscal quarters for
which internal financial statements are available, immediately preceding the Calculation Date. The
amount in clause (1) shall include the Indebtedness, Disqualified Stock or Preferred Stock giving
rise to the need to make such calculation.



          In addition, for purposes of calculating the Secured Leverage Ratio:




     (1) acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by the
specified Person or any of its Restricted Subsidiaries (or by any Person that has
subsequently become a Restricted Subsidiary or has subsequently merged or consolidated with
such Person or any of its Restricted Subsidiaries), including through mergers or
consolidations and including any related financing transactions, during the four-quarter
reference period or subsequent to such reference period and on or prior to the Calculation
Date shall be given pro forma effect as if they had occurred on the first day of the
four-quarter reference period and Consolidated Cash Flow for such reference period shall be
calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act,
but without giving effect to clause (3) of the proviso set forth in the definition of
Consolidated Net Income;




     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, shall be excluded; and




     (3) the Indebtedness attributable to discontinued operations, as determined in
accordance with GAAP shall be excluded, but only to the extent that such Indebtedness shall
not be an obligation of the specified Person or any of its Restricted Subsidiaries following
the Calculation Date.



          “Secured Obligations” means, collectively, the Note Obligations and the Junior Lien
Obligations.



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



          “Security Agreement” means the Second Lien Security Agreement to be dated on or about the
Issue Date in substantially the form attached hereto as Exhibit F, among the Company, the
Guarantors and the Collateral Trustee, with respect to the security interests in favor of the
Collateral Trustee, for the benefit of the Holders of the Second Lien Notes, in all or any portion
of the Collateral, in each case, as amended, modified, restated, supplemented or replaced from time
to time.



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          “Security Documents” means the Collateral Trust Agreement, the Security Agreement, the Second
Lien Intellectual Property Security Agreement, the Initial Mortgages and any additional Mortgages
on After-Acquired Property and any security agreements, pledge agreements, collateral assignments,
mortgages, collateral agency agreements, deeds of trust or other grants or transfers for security
executed and delivered by the Company, a Guarantor or any other Obligor creating (or purporting to
create) a Lien upon Collateral in favor of the Collateral Trustee equally and ratably for the
benefit of the holders of the Secured Obligations, in each case, as amended, modified, renewed,
restated or replaced, in whole or in part, from time to time, in accordance with its terms.



          “Series of Junior Lien Debt” means, severally, the Second Lien Notes and any Additional Second
Lien Notes or Exchange Notes issued for Second Lien Notes, or each issue or series of Junior Lien
Debt for which a single transfer register is maintained (provided that any Hedging Obligations
constituting Junior Lien Debt shall be deemed part of the Series of Junior Lien Debt to which it
relates).



          “Series of Priority Lien Debt” means, severally, the First Lien Notes and any Additional First
Lien Notes or exchange notes issued for First Lien Notes, or other Indebtedness that constitutes
Priority Lien Debt (provided that any Hedging Obligations constituting Priority Lien Debt shall be
deemed part of the Series of Priority Lien Debt to which it relates).



          “Series of Secured Debt” means each Series of Priority Lien Debt and each Series of Junior
Lien Debt.



          “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 date hereof.



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



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




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




     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general



33









 






partners of which are that Person or one or more Subsidiaries of that Person (or any
combination thereof).



          “TIA” means the Trust Indenture Act of 1939, as in effect on the date on which this Indenture
is qualified under the TIA; provided, however, in the event the Trust Indenture Act of 1939 is
amended after such date, “TIA” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939, as so amended.



          “Total Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries, as shown on the most recent balance sheet of the Company.



          “UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.



          “Unlegended Regulation S Global Note” means a permanent Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the OID Legend, deposited with or on behalf of and
registered in the name of the Depositary or its nominee and issued upon expiration of the
Restricted Period.



          “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 the OID Legend and that has the
“Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited
with or on behalf of and registered in the name of the Depositary, representing a series of Second
Lien Notes, and that does not bear the Private Placement Legend.



          “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as of or after the Issue Date as an Unrestricted Subsidiary pursuant to
a Board Resolution in compliance with Section 4.16 hereof but only to the extent that such
Subsidiary:




     (1) is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that could reasonably be expected to be obtained at the
time from Persons who are not Affiliates of the Company;




     (2) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; and




     (3) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries (except for guarantees
or credit support that shall be released upon such designation).



34









 





          Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary shall
be evidenced to the Second Lien Trustee by filing with the Second Lien Trustee a certified copy of
the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that
such designation complied with the preceding conditions and the conditions under Section 4.16.



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



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



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




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




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


Section 1.02. Other Definitions



        .

	 	 	 	 	 	 
	 	 	 	Defined	 
	 	 	 	in	 
	Term	 	Section	 
	“Affiliate Transaction”	 	 	4.11	 
	“Asset Sale Offer”	 	 	4.10	 
	“Authentication Order”	 	 	2.02	 
	“Change of Control Offer”	 	 	4.14	 
	“Change of Control Payment”	 	 	4.14	 
	“Change of Control Payment Date”	 	 	4.14	 
	“Collateral Excess Proceeds”	 	 	4.10	 
	“Covenant Defeasance”	 	 	8.03	 
	“DTC”	 	 	2.01	 
	“Event of Default”	 	 	6.01	 
	“Excess Proceeds”	 	 	4.10	 
	“Initial Mortgages”	 	 	4.22	 
	“Legal Defeasance”	 	 	8.02	 
	“Mortgage Closing Date”	 	 	4.22	 
	“Mortgage Policies”	 	 	4.22	 
	“Offer Amount”	 	 	3.08	 
	“Offer Period”	 	 	3.08	 
	“offshore transaction”	 	 	2.07	 






35









 






	 	 	 	 	 	 
	 	 	 	Defined	 
	 	 	 	in	 
	Term	 	Section	 
	“Paying Agent”	 	 	2.04	 
	“Payment Default”	 	 	6.01	 
	“Permitted Debt”	 	 	4.09	 
	“Purchase Date”	 	 	3.08	 
	“Registrar”	 	 	2.04	 
	“Related Proceedings”	 	 	13.10	 
	“Repurchase Offer”	 	 	3.08	 
	“Restricted Payments”	 	 	4.07	 
	“Reversion Date”	 	 	4.22	 
	“Specified Courts”	 	 	13.10	 
	“Suspension Conditions”	 	 	4.22	 
	“Suspended Covenants”	 	 	4.22	 
	“Suspension Date”	 	 	4.22	 
	“Suspension Period”	 	 	4.22	 





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 of this Indenture.



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



          “indenture securities” means the Second Lien Notes;



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



          “indenture to be qualified” means this Indenture;



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




     “obligor” on the Second Lien Notes means the Company and any successor obligor upon the
Second Lien Notes.



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


Section 1.04. Rules of Construction.




          (a) Unless the context otherwise requires:




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



36









 






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




     (iii) “or” is not exclusive;




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




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




     (vi) 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.



ARTICLE TWO

THE NOTES



Section 2.01. Form and Dating.




          (a) General. The Second Lien Notes and the Second Lien Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Second Lien Notes may
have notations, legends or endorsements required by law, stock exchange rule or usage. Each Second
Lien Note shall be dated the date of its authentication. The Second Lien Notes shall be issued in
registered, global form without interest coupons and only shall be in minimum denominations of
$2,000 and integral multiples of $1,000 in excess thereof; provided that Second Lien Notes may be
issuable in denominations of less than $1,000 solely to the extent necessary to accommodate
book-entry positions created in such amounts by the Depositary.



          The terms and provisions contained in the Second Lien Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Company, the Guarantors and the Second Lien
Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any Second Lien Note
conflicts with the express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.



          (b) Global Notes. Second Lien Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (and shall include the Global Note Legend and the OID Legend thereon
and the “Schedule of Exchanges of Interests in the Global Note”
attached thereto). Second Lien Notes issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall
represent such of the outstanding Second Lien Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding Second Lien Notes
from time to time endorsed thereon and that the aggregate principal amount of outstanding Second
Lien Notes represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Second



37









 







Lien Notes represented
thereby shall be made by the Second Lien Trustee in accordance with instructions given by the
Holder thereof as required by Section 2.07 hereof.



          (c) Regulation S Global Notes. Second Lien Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of the Legended Regulation S Global Note, which shall be
deposited on behalf of the purchasers of the Second Lien Notes represented thereby with the Second
Lien Trustee, as custodian for The Depository Trust Company (“DTC”), and registered in the name of
the Depositary or the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Second
Lien Trustee as hereinafter provided. Following the termination of the Restricted Period,
beneficial interests in the Legended Regulation S Global Note shall automatically be exchanged for
beneficial interests in Unlegended Regulation S Global Notes pursuant to the Applicable Procedures.
The aggregate principal amount of the Regulation S Global Notes may from time to time be increased
or decreased by adjustments made on the records of the Second Lien Trustee and the Depositary or
its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.



          (d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Cedel Bank” and “Customer Handbook” of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Clearstream.


Section 2.02. Execution and Authentication.




          Two Officers of the Company shall sign the Second Lien Notes for the Company by manual or
facsimile signature.



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



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



          The aggregate principal amount of Second Lien Notes which may be authenticated and delivered
under this Indenture is unlimited. The Company may, subject to Article Four of this Indenture and
applicable law, issue Additional Second Lien Notes under this Indenture, including Exchange Notes;
provided that the Second Lien Notes issued on the Closing Date and any such Additional Second Lien
Notes shall be fungible for U.S. federal income tax purposes. The Second Lien Notes issued on the
Closing Date and any Additional Second Lien Notes subsequently issued shall be treated as a single
class for all purposes under this Indenture.



          The Second Lien Trustee shall, upon a written order of the Company signed by two Officers of
the Company (an “Authentication Order”), authenticate Second Lien Notes for original issue on the
date hereof of $75.0 million. At any time and from time to time after the execution of this
Indenture, the Second Lien Trustee shall, upon receipt of an Authentication



38









 







Order, authenticate
Second Lien Notes for original issue in aggregate principal amount specified in such Authentication
Order. The Authentication Order shall specify the amount of Second Lien Notes to be authenticated
and the date on which the Second Lien Notes are to be authenticated.



          The Second Lien Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Second Lien Notes. An authenticating agent may authenticate Second Lien Notes
whenever the Second Lien Trustee may do so. Each reference in this Indenture to authentication by
the Second Lien Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Company.


Section 2.03. Methods of Receiving Payments on the Second Lien Notes.




          If a Holder has given wire transfer instructions to the Company, the Company shall pay, or
cause the Paying Agent to pay, all principal, interest and premium and Additional Interest, if any,
on that Holder’s Second Lien Notes in accordance with those instructions. All other payments on
Second Lien Notes shall be made at the office or agency of the Paying Agent and Registrar within
the City and State of New York unless the Company elects to make interest payments by check mailed
to the Holders at their addresses set forth in the register of Holders.


Section 2.04. Registrar and Paying Agent.




          (a) The Company shall maintain an office or agency where Second Lien Notes may be presented
for registration of transfer or for exchange (“Registrar”) and an office or agency where Second
Lien Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of
the Second Lien Notes and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may
change any Paying Agent or Registrar without prior notice to any Holder. The Company shall notify
the Second Lien Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Second Lien Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.



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



          (c) The Company initially appoints the Second Lien Trustee to act as the Registrar and Paying
Agent and to act as Custodian with respect to the Global Notes.


Section 2.05. Paying Agent to Hold Money in Trust.




          The Company shall require each Paying Agent other than the Second Lien Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or the Second Lien
Trustee all money held by the Paying Agent for the payment of principal, premium or Additional
Interest, if any, or interest on the Second Lien Notes, and shall notify the Second Lien Trustee of
any default by the Company in making any such payment. While any such



39









 







default continues, the
Second Lien Trustee may require a Paying Agent to pay all money held by it to the Second Lien
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Second Lien Trustee. Upon payment over to the Second Lien Trustee, the Paying Agent (if other than
the Company or one of its Subsidiaries) shall have no further liability for the money. If the
Company or one of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Second Lien Trustee shall
serve as Paying Agent for the Second Lien Notes.


Section 2.06. Holder Lists.




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


Section 2.07. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All
Global Notes shall be exchanged (or exchangeable, in the case of a Default or Event of Default
covered by clause (iii) below) by the Company for Definitive Notes if (i) DTC (A) notifies the
Company that it is unwilling or unable to continue as Depositary for the Global Notes and the
Company fails to appoint a successor Depositary within 90 days after receiving such notice or that
it (B) has ceased to be a clearing agency registered under the Exchange Act and the Company fails
to appoint a successor Depositary within 90 days after becoming aware of such condition; (ii) the
Company, at its option, notifies the Second Lien Trustee in writing that it elects to cause the
issuance of Definitive Notes; or (iii) there shall have occurred and be continuing a Default or
Event of Default with respect to the Second Lien Notes. Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes delivered in exchange for any Global
Note or beneficial interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance with its customary
procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.08 and 2.11 hereof. Every Second Lien Note authenticated and delivered in exchange for,
or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07 or Section 2.08
or 2.11 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note,
except for Definitive Notes issued subsequent to any of the preceding events in (i), (ii) or (iii)
above and pursuant to Section 2.07(c) or (e) hereof. A Global Note may not be exchanged for
another Second Lien Note other than as provided in this Section 2.07(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.07(b) or (c)
hereof.



40









 





          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and any Applicable
Procedures; provided, however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Legended Regulation S Global Note may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other than the Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. Except as may be required by any Applicable Procedures, no written orders or
instructions shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.07(b)(i).




     (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.07(b)(i) above, the transferor of such beneficial interest must deliver
to the Registrar either (A) both (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) both (1) if
permitted under Section 2.07(a), a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1) above. Upon
consummation of a Registered Exchange Offer by the Company in accordance with
Section 2.07(f) hereof, the requirements of this Section 2.07(b)(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 Second Lien Notes or otherwise
applicable under the Securities Act, the Second Lien Trustee shall adjust the principal
amount at maturity of the relevant Global Notes pursuant to Section 2.07(i) hereof.



41









 






     (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 Section 2.07(b)(ii) above and the Registrar
receives the following:




     (A) if the transferee shall take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof, or, if
permitted by the Applicable Procedures, item (3) thereof;




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




     (C) if the transferee is required by the Applicable Procedures to take delivery
in the form of a beneficial interest in the IAI Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications and Opinion of Counsel required by item (3) thereof, if applicable.




     (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.07(b)(ii) above and:




     (A) such exchange or transfer is effected pursuant to the Registered 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 Person participating in the distribution of the
Exchange Notes or (2) a Person who is an affiliate (as defined in Rule 144) of the
Company;




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




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




     (D) the Registrar receives the following:




     (1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such Holder in



42









 







the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




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




and, in each such case set forth in this subparagraph (D) 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 herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.



          If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Second Lien Trustee shall
authenticate and deliver 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.




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



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




     (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.
Subject to Section 2.07(a) hereof, 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 C hereto, including the
certifications in item (2)(a) thereof;




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




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



43









 






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




     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications and Opinion of Counsel required by item (3)(d) thereof, if
applicable; or




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




the Second Lien Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.07(i) hereof, and the Company shall
execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Second Lien Trustee shall authenticate and deliver a Restricted Definitive Note in the
appropriate principal amount to the Person designated by the Holder of such beneficial
interest in the instructions delivered to the Registrar by the Depositary and the applicable
Participant or Indirect Participant on behalf of such Holder. Any Restricted Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.07(c)(i) shall be registered in such name or names
and in such authorized denomination or denominations as the Holder of such beneficial
interest shall designate in such instructions. The Second Lien Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Second Lien Notes are so
registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.07(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.




     (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
Subject to Section 2.07(a) hereof, 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 the Registered 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
Person participating in the distribution of the Exchange Notes or (2) a Person who
is an affiliate (as defined in Rule 144) of the Company;




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



44









 






     (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:




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




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




and, in each such case set forth in this subparagraph (D) 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 herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.




Upon satisfaction of any of the conditions of any of the clauses of this Section
2.07(c)(ii), the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Second Lien Trustee shall
authenticate and deliver an Unrestricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial interest
in instructions delivered to the Registrar by the Depositary and the applicable
Participant or Indirect Participant on behalf of such holder, and the Second Lien
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to
Section 2.07(i), the aggregate principal amount of the applicable Restricted Global
Note.




     (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. Subject to Section 2.07(a) hereof, if any Holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the
applicable conditions set forth in Section 2.07(b)(ii) hereof, the Second Lien Trustee shall
cause the aggregate principal amount of the applicable Unrestricted Global Note to be
reduced accordingly pursuant to Section 2.07(i) hereof, and the Company shall execute, and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Second
Lien Trustee shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate principal amount to the Person designated by the Holder of such beneficial
interest in instructions delivered to the Registrar by the Depositary and the applicable
Participant or Indirect Participant on behalf of such Holder. Any Unrestricted



45









 







Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.07(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 designate in such
instructions. The Second Lien Trustee shall deliver such Unrestricted Definitive Notes to
the Persons in whose names such Second Lien Notes are so registered. Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.07(c)(iii) shall not bear the Private Placement Legend.



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




     (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Restricted Definitive
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
Restricted Definitive Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;




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




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




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




     (E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications and Opinion of Counsel required by item (3)(d) thereof, if
applicable; or




     (F) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in Item 3(b) thereof,



46









 






the Second Lien Trustee shall cancel the Restricted Definitive Note, and increase or
cause to be increased in a corresponding amount to Section 2.07(i) hereof, 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, in
the case of clause (C) above, the Regulation S Global Note, and in all other cases,
an IAI Global Note.




     (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Restricted Definitive 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 Registered 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 Person participating in the
distribution of the Exchange Notes or (2) a Person who is an affiliate (as defined
in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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




and, in each such case set forth in this subparagraph (D) 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 herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.



          Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.07(d)(ii),
the Second Lien Trustee shall cancel such Restricted Definitive Notes and



47









 







increase or cause to be
increased in a corresponding amount pursuant to Section 2.07(i) hereof, the aggregate principal
amount of the Unrestricted Global Note.




     (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Unrestricted
Definitive 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 Second Lien Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased in a corresponding amount
pursuant to Section 2.07(i) hereof, the aggregate principal amount of one of the
Unrestricted Global Notes.




     (iv) An Unrestricted Definitive Note may not be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests in a Restricted
Global Note.




     (v) If any such exchange or transfer from a Definitive Note to a beneficial interest in
an Unrestricted Global Note 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 Company shall
issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Second Lien Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive Notes so transferred.



          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this
Section 2.07(e), the Registrar shall register the transfer or exchange of Definitive Notes.
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 by
its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required pursuant to the
following provisions of this Section 2.07(e).




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




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




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




48









 






     (C) if the transfer shall be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.




     (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




     (A) such exchange or transfer is effected pursuant to the Registered 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 Person participating in the
distribution of the Exchange Notes or (2) a Person who is an affiliate (as defined
in Rule 144) of the Company;




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



     (C) any 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:




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




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




and, in each such case set forth in this subparagraph (D) 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 herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.




     Upon satisfaction of the conditions of any of the clauses of this Section
2.07(e)(ii), the Second Lien Trustee shall cancel the prior Restricted Definitive
Note and the Company shall execute, and upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Second Lien Trustee shall authenticate and
deliver an Unrestricted Definitive Note in the appropriate



49









 







aggregate principal
amount to the Person designated by the Holder of such prior Restricted Definitive
Note in instructions delivered to the Registrar by such Holder.




     (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Unrestricted Definitive 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) Registered Exchange Offer. Upon the occurrence of a Registered Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Second Lien Trustee shall authenticate
(i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are not participating
in a distribution of the Exchange Notes and (y) they are not affiliates (as defined in Rule 144) of
the Company, and accepted for exchange in the Registered 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 the Registered Exchange Offer. Concurrently with the issuance of such
Second Lien Notes, the Second Lien Trustee shall reduce or cause to be reduced in a corresponding
amount the aggregate principal amount of the applicable Restricted Global Notes, and the Company
shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Second Lien Trustee shall
authenticate and deliver to the Persons designated by the holders of Restricted Definitive Notes so
accepted Unrestricted Definitive Notes in the appropriate aggregate principal amount.



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




     (i) Private Placement Legend. Except as permitted below, each Global Note and each
Definitive Note (and all Second Lien Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:




THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”),
AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE
IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY
BE OFFERED, RESOLD,



50









 







PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER RULE 144 UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (IV) TO AN INSTITUTIONAL ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, SUBJECT TO THE COMPANY’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(II) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR PURSUANT TO CLAUSES (III) OR
(IV), TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION
SATISFACTORY TO EACH OF THEM IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS
BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT, AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE
INDENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this
Section 2.07 (and all Second Lien Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.




     (ii) Global Note Legend. Each Global Note shall bear a legend in substantially the
following form:




THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO



51









 







SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.




     (iii) OID Legend. Each Second Lien Note issued hereunder that has more than a de
minimis amount of original issue discount for U.S. federal income tax purposes shall bear a
legend in substantially the following form:




THIS NOTE WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” FOR PURPOSES OF SECTION 1271 ET
SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. A HOLDER MAY OBTAIN THE
ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR
SUCH NOTES BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE
FOLLOWING ADDRESS: TERREMARK WORLDWIDE, INC., 2 SOUTH BISCAYNE BLVD., SUITE 2800,
MIAMI, FL 33131; ATTN: CHIEF LEGAL OFFICER.



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




THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY
EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE
SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.



          (i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Second Lien Trustee in accordance with Section 2.12
hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the principal amount of Second
Lien Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Second Lien Trustee or by the Depositary at the direction of the
Second Lien Trustee to reflect such reduction; and if



52









 







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



          (j) General Provisions Relating to Transfers and Exchanges.




     (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Second Lien Trustee shall authenticate Global Notes and Definitive Notes upon receipt of
an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s
request.




     (ii) No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.08,
2.11, 3.06, 3.08, 4.10, 4.14 and 9.05 hereof).




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




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




     (v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Second Lien Notes during a period beginning at the opening of business 15 days
before the day of any selection of Second Lien Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Second Lien Note so selected for redemption in whole or in
part, except the unredeemed portion of any Second Lien Note being redeemed in part, (C) to
register the transfer of or to exchange a Second Lien Note between a record date and the
next succeeding interest payment date or (D) to register the transfer of or to exchange a
Second Lien Note tendered and not withdrawn in connection with a Change of Control Offer or
an Asset Sale Offer.




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



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     (vii) The Second Lien 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 2.07 to effect a registration of
transfer or exchange may be submitted by facsimile or electronic transmission with the
original to follow by first class mail.


Section 2.08. Replacement Notes.




          (a) If any mutilated Second Lien Note is surrendered to the Second Lien Trustee or the Company
and the Second Lien Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Second Lien Note, the Company shall issue and the Second Lien Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Second Lien Note. If required by the Second
Lien Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Company to protect the Company, the Second Lien Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Second Lien Note is replaced.
The Company and/or the Second Lien Trustee may charge for its expenses in replacing a Second Lien
Note.



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


Section 2.09. Outstanding Notes.




          (a) The Second Lien Notes outstanding at any time are all the Second Lien Notes authenticated
by the Second Lien Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Second Lien Trustee in accordance
with the provisions hereof, and those described in this Section 2.09 as not outstanding. Except as
set forth in Section 2.10 hereof, a Second Lien Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Second Lien Note; however, Second Lien Notes held
by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07(b)(i) hereof.



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



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



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



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Section 2.10. Treasury Notes.




          In determining whether the Holders of the required principal amount of Second Lien Notes have
concurred in any direction, waiver or consent, Second Lien Notes owned by the Company, or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Second Lien Trustee shall be protected in relying on any such
direction, waiver or consent, only Second Lien Notes that the Second Lien Trustee knows are so
owned shall be so disregarded.


Section 2.11. Temporary Notes.




          (a) Until certificates representing Second Lien Notes are ready for delivery, the Company may
prepare and the Second Lien Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Second Lien Notes. Temporary Notes shall be substantially
in the form of Definitive Notes but may have variations that the Company considers appropriate
for temporary Second Lien Notes and as shall be reasonably acceptable to the Second Lien Trustee.
Without unreasonable delay, the Company shall prepare and the Second Lien Trustee shall
authenticate Definitive Notes in exchange for temporary Second Lien Notes.



          (b) Holders of temporary Second Lien Notes shall be entitled to all of the benefits of this
Indenture.


Section 2.12. Cancellation.




          The Company at any time may deliver Second Lien Notes to the Second Lien Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Second Lien Trustee any Second
Lien Notes surrendered to them for registration of transfer, exchange or payment. The Second Lien
Trustee and no one else shall cancel all Second Lien Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of canceled Second Lien
Notes in accordance with its procedures for the disposition of canceled securities in effect as of
the date of such disposition. The Company may not issue new Second Lien Notes to replace Second
Lien Notes that it has paid or that have been delivered to the Second Lien Trustee for
cancellation.


Section 2.13. Defaulted Interest.




          If the Company defaults in a payment of interest on the Second Lien Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Second Lien Notes and in Section 4.01 hereof. The Company shall
notify the Second Lien Trustee in writing of the amount of defaulted interest proposed to be paid
on each Second Lien Note and the date of the proposed payment. The Company shall fix or cause to
be fixed each such special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted interest. At least
15 days before the special record date, the Company (or, upon the written request of the Company
and provided the Company prepares such notice, the Second Lien Trustee in the name and at the
expense of the Company) shall deliver or cause to be



55









 







delivered to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.


Section 2.14. CUSIP Numbers.




          The Company in issuing the Second Lien Notes may use “CUSIP” numbers (if then generally in
use), and, if so, the Second Lien Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Second Lien
Notes or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Second Lien Notes, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company shall promptly notify
the Second Lien Trustee in writing of any change in the “CUSIP” numbers.



ARTICLE THREE

REDEMPTION AND OFFERS TO

PURCHASE



Section 3.01. Notices to Second Lien Trustee.




          If the Company elects to redeem Second Lien Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Second Lien Trustee, at least 30 days
but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (i) the
clause of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date,
(iii) the principal amount of Second Lien Notes to be redeemed and (iv) the redemption price.


Section 3.02. Selection of Second Lien Notes to Be Redeemed.




          (a) If less than all of the Second Lien Notes are to be redeemed at any time, the Second Lien
Trustee shall select the Second Lien Notes for redemption as follows: (i) if the Second Lien Notes
are listed on any national securities exchange, in compliance with the requirements of the national
securities exchange on which the Second Lien Notes are listed; or (ii) if the Second Lien Notes are
not so listed, on a pro rata basis, by lot or by such method as the Second Lien Trustee deems fair
and appropriate, subject to adjustments so that no Second Lien Notes of $2,000 or less will be
redeemed in part.



          (b) The Second Lien Trustee shall promptly notify the Company in writing of the Second Lien
Notes selected for redemption and, in the case of any Second Lien Note selected for partial
redemption, the principal amount at maturity thereof to be redeemed. No Second Lien Notes in
amounts of $2,000 or less shall be redeemed in part. Second Lien Notes and portions of Second Lien
Notes selected shall be in amounts of $2,000 or whole multiples of $1,000; except that if all of
the Second Lien Notes of a Holder are to be redeemed, the entire outstanding amount of Second Lien
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Second Lien Notes called for
redemption also apply to portions of Second Lien Notes called for redemption.



56









 




Section 3.03. Notice of Redemption.




          (a) At least 30 days but not more than 60 days before a redemption date, the Company shall
deliver or cause to be delivered, by first class mail, a notice of redemption to each Holder whose
Second Lien Notes are to be redeemed at its registered address, except that a notice of redemption
may be mailed more than 60 days if the notice is issued in connection with a Legal Defeasance or
Covenant Defeasance pursuant to Section 8.02 or 8.03 hereof or a satisfaction and discharge of this
Indenture pursuant to Article Twelve hereof.



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




     (i) the redemption date;




     (ii) the redemption price;




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




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




     (v) that Second Lien Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and become due on the date fixed for redemption;




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




     (vii) the paragraph of the Second Lien Notes and/or Section of this Indenture pursuant
to which the Second Lien 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 Second Lien Notes.



          (b) At the Company’s request, the Second Lien Trustee shall give the notice of redemption in
the Company’s name and at its expense; provided, however, that the Company shall have delivered to
the Second Lien Trustee, at least 45 days prior to the redemption date, an Officers’ Certificate
requesting that the Second Lien Trustee give such notice and attaching a copy of such notice, which
shall set forth the information to be stated in such notice as provided in the preceding paragraph.
The notice, if delivered in the manner provided herein shall be presumed to have been given,
whether or not the Holder receives such notice.



57









 




Section 3.04. Effect of Notice of Redemption.




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


Section 3.05. Deposit of Redemption Price.




          (a) One Business Day prior to the redemption date, the Company shall deposit with the Second
Lien Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued
interest and Additional Interest, if any, on all Second Lien Notes to be redeemed on that date.
The Second Lien Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Second Lien Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Second Lien Notes to be
redeemed.



          (b) If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Second Lien Notes or the portions of Second
Lien Notes called for redemption. If a Second Lien 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 Second Lien Note was registered at the close of
business on such record date. If any Second Lien Note called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption 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 Second Lien Notes and in Section 4.01 hereof.


Section 3.06. Second Lien Notes Redeemed in Part.




          Upon surrender of a Second Lien Note that is redeemed in part, the Company shall issue and the
Second Lien Trustee shall authenticate for the Holder at the expense of the Company a new Second
Lien Note equal in principal amount to the unredeemed portion of the Second Lien Note surrendered.
No Second Lien Notes in denominations of $2,000 or less shall be redeemed in part.


Section 3.07. Optional Redemption. The Company may redeem all or a part of the Second Lien Notes on any one or more occasions,
at the redemption prices (expressed as percentages of principal amount of the Second Lien Notes to
be redeemed) set forth below plus accrued and unpaid interest on the Second Lien Notes redeemed, to
the applicable redemption date (subject to the rights of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), if redeemed during the periods
indicated below:




	 	 	 	 	 
	Year	 	Percentage
	Issue Date through and including May 15, 2011
	 	 	104.000	%
	May 16, 2011 through and including May 15, 2012
	 	 	102.000	%
	May 16, 2012 and thereafter
	 	 	100.000	%






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Section 3.08. Repurchase Offers.




          In the event that, pursuant to Section 4.10 or 4.14 hereof, the Company shall be required to
commence an offer to all Holders to purchase their respective Second Lien Notes (a “Repurchase
Offer”), it shall follow the procedures specified in such Sections and, to the extent not
inconsistent therewith, the procedures specified below.



          The Repurchase Offer shall remain open for a period of no less than 30 days and no more than
60 days following its commencement, except to the extent that a longer period is required by
applicable law (the “Offer Period”). No later than three Business Days after the termination of
the Offer Period (the “Purchase Date”), the Company shall purchase the principal amount of Second
Lien Notes required to be purchased pursuant to Section 4.10 or 4.14 hereof (the “Offer Amount”)
or, if less than the Offer Amount has been tendered, all Second Lien Notes tendered in response to
the Repurchase Offer. Payment for any Second Lien Notes so purchased shall be made in the same
manner as interest payments are made.



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



          Upon the commencement of a Repurchase Offer, the Company shall send or cause to be sent, by
first class mail or electronic transmission, a notice to the Second Lien Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to enable such Holders
to tender Second Lien Notes pursuant to the Repurchase Offer. The Repurchase Offer shall be made
to all Holders. The notice, which shall govern the terms of the Repurchase Offer, shall state:




     (i) that the Repurchase Offer is being made pursuant to this Section 3.08 and
Section 4.10 or Section 4.14 hereof, and the length of time the Repurchase Offer shall
remain open;




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




     (iii) that any Second Lien Note not tendered or accepted for payment shall continue to
accrue interest and Additional Interest, if any;




     (iv) that, unless the Company defaults in making such payment, any Second Lien Note (or
portion thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;




     (v) that Holders electing to have a Second Lien Note purchased pursuant to a Repurchase
Offer may elect to have Second Lien Notes purchased in principal amounts of $2,000 or on
integral multiples of $1,000 only;




     (vi) that Holders electing to have a Second Lien Note purchased pursuant to any
Repurchase Offer shall be required to surrender the Second Lien Note, with the form



59









 







entitled
“Option of Holder to Elect Purchase” on the reverse of the Second Lien Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least three days before the
Purchase Date;




     (vii) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, facsimile transmission or letter (or such other notice sent in
accordance with Applicable Procedures) setting forth the name of the Holder, the principal
amount of the Second Lien Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Second Lien Note purchased;




     (viii) that, if the aggregate amount of Second Lien Notes surrendered by Holders
exceeds the Offer Amount, the Second Lien Trustee shall, subject in the case of a Repurchase
Offer made pursuant to Section 4.10, select the Second Lien Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Second Lien Trustee so
that only Second Lien Notes in denominations of $2,000 or an integral multiple in excess
thereof, shall be purchased); and




     (ix) that Holders whose Second Lien Notes were purchased only in part shall be issued
new Second Lien Notes equal in principal amount to the unpurchased portion of the Second
Lien Notes surrendered (or transferred by book-entry transfer).



          On the Purchase Date, the Company shall, to the extent lawful, subject in the case of a
Repurchase Offer made pursuant to Section 4.10, accept for payment on a pro rata basis to the
extent necessary, the Offer Amount of Second Lien Notes (or portions thereof) tendered pursuant to
the Repurchase Offer, or if less than the Offer Amount has been tendered, all Second Lien Notes
tendered, and shall deliver to the Second Lien Trustee an Officers’ Certificate stating that such
Second Lien Notes (or portions thereof) were accepted for payment by the Company in accordance with
the terms of this Section 3.08. The Company, the Depositary or the Paying Agent, as the case may
be, shall promptly (but in any case not later than three Business Days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price of Second Lien Notes
tendered by such Holder, as the case may be, and accepted by the Company for purchase, and the
Company, shall promptly issue a new Second Lien Note. The Second Lien Trustee, upon written
request from the Company shall authenticate and deliver such new Second Lien Note to such Holder,
in a principal amount at maturity equal to any unpurchased portion of the Second Lien Note
surrendered. Any Second Lien Note not so accepted shall be promptly delivered by the Company to
the respective Holder thereof. The Company shall publicly announce the results of the Repurchase
Offer on the Purchase Date.



          The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Second Lien Notes pursuant to a Repurchase
Offer. To the extent that the provisions of any securities laws or regulations conflict with
Sections 3.08, 4.10 or 4.14, as the case may be, the Company shall



60









 







comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under
Section 3.08, 4.10 or 4.14 by virtue of such conflict.


Section 3.09. Application of Trust Money.




          All money deposited with the Second Lien Trustee pursuant to Section 12.02 shall be held in
trust and applied by it, in accordance with the provisions of the Second Lien Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Second Lien Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment such money has been
deposited with the Second Lien Trustee; but such money need not be segregated from other funds
except to the extent required by law.



ARTICLE FOUR

COVENANTS



Section 4.01. Payment of Second Lien Notes.




          (a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest
on the Second Lien Notes on the dates and in the manner provided in the Second Lien Notes.
Principal, premium, if any, and interest shall be considered paid on the date due if the Paying
Agent, if other than the Company or one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The Company shall pay all
Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.



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


Section 4.02. Maintenance of Office or Agency.




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



          (b) The Company may also from time to time designate one or more other offices or agencies
where the Second Lien Notes may be presented or surrendered for any or all



61









 







such purposes and may
from time to time rescind such designations. The Company shall give prompt written notice to the
Second Lien Trustee of any such designation or rescission and of any change in the location of any
such other office or agency.



          (c) The Company hereby designates the Corporate Trust Office of the Second Lien Trustee as one
such office or agency of the Company in accordance with Section 2.04 of this Indenture.


Section 4.03. Reports.




          (a) The Company shall furnish to the Second Lien Trustee and, upon request, to beneficial
owners and prospective investors a copy of all of the information and reports referred to in
clauses (i) and (ii) below within 15 days after such information would be required to be filed with
the SEC (whether or not the Company is required to file such information):




     (i) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to
file such Forms, including (1) a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and (2) with respect to the annual information only, a
report on the annual financial statements by the Company’s independent registered public
accountants; and




     (ii) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports;



     provided that if the Company files such reports electronically with the SEC’s Electronic Data
Gathering Analysis and Retrieval System (or any successor system) within such time periods, the
Company shall not be required to furnish such reports to beneficial owners and prospective
investors as specified above.



          (b) The Company and the Guarantors shall, for so long as any Second Lien Notes remain
outstanding, furnish to the Holders and to prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.


Section 4.04. Compliance Certificate.




          (a) The Company and each Guarantor (to the extent that the Company or such Guarantor is so
required under the TIA) shall deliver to the Second Lien Trustee, within 90 days after the end of
each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action, if any, the Company is taking or
proposes to take with respect thereto).



62









 





          (b) The Company shall, so long as any of the Second Lien Notes are outstanding, deliver to the
Second Lien Trustee, upon becoming aware of any Default or Event of Default, an Officers
Certificate specifying such Default or Event of Default, and in any event, no later than 5 Business
Days after so becoming aware.


Section 4.05. Taxes.




          The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
any taxes, assessments, and governmental levies except such as are 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 Second Lien Notes including, but not limited to, any present or
future stamp, documentary, property, intangible, mortgage recording or similar taxes, charges or
levies that arise from the execution, delivery or registration of, performance under, or otherwise
with respect to the Mortgages.


Section 4.06. Stay, Extension and Usury Laws.




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


Section 4.07. Restricted Payments.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:




     (i) declare or pay (without duplication) any dividend or make any other payment or
distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests (including, without limitation, any payment on account of such Equity Interests in
connection with any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted
Subsidiaries’ Equity Interests in their capacity as such (other than dividends, payments or
distributions (x) payable in Equity Interests (other than Disqualified Stock) of the Company
or (y) to the Company or a Restricted Subsidiary of the Company);




     (ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company or any of
its Restricted Subsidiaries), in whole or in part, any Equity Interests of the Company or
any Restricted Subsidiary thereof held by Persons other than the Company or any of its
Restricted Subsidiaries;



63









 






     (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Second Lien Notes
or the Note Guarantees, except a payment of interest or principal at the Stated Maturity
thereof; or




     (iv) make any Restricted Investment;


(all such payments and other actions set forth in Sections 4.07(a)(i) through (iv) above being
collectively referred to as “Restricted Payments”),



unless, at the time of and after giving effect to such Restricted Payment:





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




     (B) the Company would, at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 4.09(a); and




     (C) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after June
24, 2009 (excluding Restricted Payments permitted by subclauses 4.07(b)(ii), (iii),
(iv), (v), (vii), (viii) and (x) below) is less than the sum, without duplication,
of:




     (1) the Consolidated Cash Flow of the Company for the period (taken as
one accounting period) from the beginning of the fiscal quarter during which
June 24, 2009 falls to the end of the Company’s most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment less 2.0 times the Fixed Charges of the Company for
the same period, plus




     (2) 100% of the aggregate net proceeds received by the Company
(including the Fair Market Value of any Permitted Business acquired in a
stock transaction) since the Issue Date as a contribution to its common
equity capital or from the issue or sale of Equity Interests of the Company
(other than Disqualified Stock or Equity Interests issued or sold to a
Subsidiary of the Company or Equity Interests issued or sold to an employee
stock option plan or a trust established by the Company or its Subsidiaries
for the benefit of their employees), plus




     (3) 100% of the aggregate amount by which Indebtedness or Disqualified
Stock issued by the Company or Indebtedness or Preferred Stock issued by any
Restricted Subsidiary is reduced on the Company’s consolidated balance sheet
upon the conversion or exchange into Equity Interests (other than
Disqualified Stock) of the Company (less the amount of any cash, or the fair
value of



64









 







assets, distributed by the Company or any Restricted Subsidiary
upon such conversion or exchange), in each case to a party other than the
Company or one of its Restricted Subsidiaries, plus




     (4) 100% of the aggregate amount received in cash and the Fair Market
Value of property and marketable securities received by means of (x) the
sale or other disposition (other than to the Company or its Restricted
Subsidiaries) of Restricted Investments made by the Company or its
Restricted Subsidiaries and repurchases and redemptions of such Restricted
Investments from the Company or its Restricted Subsidiaries and repayments
of loans or advances which constitute Restricted Investments by the Company
or its Restricted Subsidiaries or (y) the sale (other than to the Company or
its Restricted Subsidiaries) of the Capital Stock of an Unrestricted
Subsidiary or any dividend or other distribution from an Unrestricted
Subsidiary; plus




     (5) to the extent that any Unrestricted Subsidiary of the Company
designated as such after the Issue Date is redesignated as a Restricted
Subsidiary after the Issue Date, the Fair Market Value of the
Company’s Investment in such Subsidiary as of the date of such
redesignation.



          (b) So long as (except with respect to subclauses (i), (ii), (iii), (iv), (v), (vii), (viii),
(x) and (xi) of this Section 4.07(b)) no Default has occurred and is continuing or would be caused
thereby, the preceding provisions shall not prohibit:




     (i) the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of the redemption
notice, as the case may be, if at the date of declaration or notice, the dividend or
redemption payment would have complied with the provisions of this Indenture;




     (ii) the making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the sale after the Issue Date (other than to a Subsidiary of the Company) of,
Equity Interests of the Company (other than Disqualified Stock) or from the contribution of
common equity capital to the Company; provided, that such Restricted Payment is made within
60 days after the receipt by the Company or a Restricted Subsidiary of the net cash proceeds
from such sale or contribution, as the case may be; provided further that the amount of any
such net cash proceeds that are utilized for any such Restricted Payment shall be excluded
from Section 4.07(a)(C)(2) hereof;




     (iii) the defeasance, redemption, repurchase or other acquisition of Indebtedness of
the Company that is subordinated to the Second Lien Notes, or Indebtedness of any Guarantor
that is subordinated to such Guarantor’s Note Guarantee, in each case, in exchange for or
with the net cash proceeds from an Incurrence of Permitted Refinancing Indebtedness;



65









 






     (iv) the repurchase, purchase, redemption or other acquisition or retirement for value
of, any Equity Interests of the Company or any Restricted Subsidiary of the Company held by
any current or future member of the Company’s (or any of its Restricted Subsidiaries’)
management, directors or employees pursuant to any management equity subscription agreement,
stock option agreement or similar agreement or upon the death, disability or termination of
employment of such directors, officers or employees; provided that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed
$1.0 million in any fiscal year (with unused amounts carried over to succeeding years
subject to a maximum of $2.0 million in any fiscal year); provided further, that such amount
in any fiscal year may be increased by an amount equal to the net cash proceeds from the
sale of Equity Interests of the Company to current or future member of management, directors
or employees that occurs after June 24, 2009 (provided that the amount of any such net cash
proceeds shall be excluded from Section 4.07(a)(C)(2) hereof);




     (v) payment of ordinary dividends on Disqualified Stock issued after the Issue Date
pursuant to the terms thereof as in effect on the date of issuance; provided, that such
Disqualified Stock was issued in accordance with Section 4.09 of this Indenture and such
dividends are included in Fixed Charges;




     (vi) the making of other Restricted Payments in an aggregate amount not to exceed
$10.0 million since June 24, 2009;




     (vii) repurchases of Equity Interests deemed to occur upon the exercise of stock
options, warrants or other convertible securities if such Equity Interests represents a
portion of the exercise price thereof;




     (viii) the repurchase, redemption or other acquisition for value of Equity Interests of
the Company or any direct or indirect parent representing solely fractional shares of such
Equity Interests in connection with a merger, consolidation, amalgamation or other
combination involving the Company or any direct or indirect parent;




     (ix) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness that is subordinated to the Second Lien Notes or
the Note Guarantees (i) at a purchase price not greater than 101% of the principal amount of
such subordinated Indebtedness in the event of a Change of Control in accordance with
provisions similar to those set forth in Section 4.14 hereof or (ii) at a purchase price not
greater than 100% of the principal amount thereof in accordance with provisions similar to
those set forth in Section 4.10 hereof; provided that, prior to or simultaneously with such
purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company
has made the Change of Control Offer or Asset Sale Offer, as applicable, as provided in
Section 4.14 and Section 4.10 hereof, and has completed the repurchase or redemption of all
Second Lien Notes validly tendered for payment in connection with such Change of Control
Offer or Asset Sale Offer;




     (x) the payment of any dividend or distribution by a Restricted Subsidiary of the
Company to the holders of its Capital Stock on a pro rata basis;



66









 






     (xi) the payment of cash dividends in respect of the Series I Convertible Preferred
Stock, par value $0.001, of the Company; provided, however, that the aggregate amount of all
such payments shall not exceed $1.0 million in any fiscal year; and




     (xii) the purchase, redemption or other acquisition or retirement for value, in whole
or in part, of shares of the Company’s Series I Convertible Preferred Stock, par value
$0.001, of the Company for an aggregate consideration not to exceed $8.0 million.



          (c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.



          (d) For purposes of determining compliance with this Section 4.07, if a Restricted Payment
meets the criteria of more than one of the exceptions described in clauses (i) through (xii) of
Section 4.07(b) hereof or is entitled to be made according to Section 4.07(a) hereof, the Company
may, in its sole discretion, classify or reclassify the Restricted Payment in any manner that
complies with this Section 4.07.


Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.




          (a) The Company shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:




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




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




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



          (b) However, the preceding restrictions shall not apply to encumbrances or restrictions
existing under or by reason of:




     (i) agreements governing Existing Indebtedness or any other agreements as in effect or
which come into effect on the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of those
agreements, provided that the amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, than those contained in the relevant agreement as in effect on the Issue
Date, as determined by the Board of Directors of the Company in their reasonable and good
faith judgment;



67









 






     (ii) the Note Documents and the Security Documents;




     (iii) applicable law, rule, regulation or order;




     (iv) any agreement or other instrument of a Person acquired by the Company or any of
its Restricted Subsidiaries as in effect at the time of such acquisition (except to the
extent the encumbrance or restriction contained in the instrument 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; provided that, in the case of an
agreement or other instrument governing Indebtedness, such Indebtedness is permitted to be
Incurred by Section 4.09 hereof;




     (v) customary non-assignment provisions in contracts entered into in the ordinary
course of business;




     (vi) purchase money obligations for property acquired in the ordinary course of
business that impose restrictions on that property of the nature described in
Section 4.08(a)(iii) hereof;




     (vii) any agreement for the sale or other disposition of the Capital Stock or all or
substantially all of the assets of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending its sale or other disposition;




     (viii) Permitted Refinancing Indebtedness, provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced, as determined by the Board of Directors of the Company in
their reasonable and good faith judgment;




     (ix) Liens securing Indebtedness otherwise permitted to be Incurred under Section 4.12
hereof that limit the right of the debtor to dispose of the assets subject to such Liens;




     (x) agreements governing Indebtedness permitted to be Incurred pursuant to Section 4.09
hereof; provided that the terms of the agreements (1) are not materially more restrictive,
taken as a whole, with respect to such encumbrances or restrictions than those in this
Indenture on the Issue Date and (2) do not restrict any Restricted Subsidiaries not so
restricted on the Issue Date;




     (xi) customary restrictions on the disposition or distribution of assets or property,
in each case contained in any technology licenses, joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and other similar agreements
entered into in the ordinary course of business;




     (xii) restrictions on cash or other deposits or net worth imposed by customers or
required by insurance, surety or bonding companies, in each case, under contracts entered
into in the ordinary course of business; and



68









 






     (xiii) encumbrances or restrictions under any agreement, amendment, modification,
restatement, renewal, supplement, refunding, replacement or refinancing that extends,
renews, refinances or replaces the agreements containing the encumbrances or restrictions in
the foregoing clauses (ii), (iv), (vi) or (ix) or in this clause (xiii), provided that the
terms and conditions of any such encumbrances or restrictions are not materially more
restrictive, taken as a whole, than those contained in the agreements being amended,
modified, restated, renewed, supplemented, refunded, replaced or refinanced as determined by
the Board of Directors of the Company in their reasonable and good faith judgment.


Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, Incur any Indebtedness (including Acquired Debt) or issue any Disqualified
Stock, and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of
Preferred Stock; provided, however, that the Company may Incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and a Guarantor may Incur Indebtedness (including Acquired Debt)
or issue Disqualified Stock or Preferred Stock if the Fixed Charge Coverage Ratio of the Company
would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred or
the Disqualified Stock or Preferred Stock had been issued, as the case may be, at the beginning of
the Company’s most recently ended four full fiscal quarters for which internal financial statements
are available.



          (b) Section 4.09(a) shall not prohibit any of the following (collectively, “Permitted Debt”):




     (i) the Incurrence by the Company and the Guarantors of Indebtedness and letters of
credit under Credit Facilities (including the $50.0 million aggregate principal amount of
First Lien Notes issued April 28, 2010), and guarantees relating thereto, in an aggregate
principal amount at any one time outstanding under this clause (i) (with letters of credit
being deemed to have a principal amount equal to the maximum potential liability of the
Company and the Guarantors thereunder) not to exceed $50.0 million;




     (ii) the Incurrence of Existing Indebtedness (other than Indebtedness described under
clause (i), (iii), (vi) or (xv) of this Section 4.09(b)), including guarantees after the
Issue Date of Existing Indebtedness;




     (iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by
the existing First Lien Notes and the related note guarantees issued under the First Lien
Notes Indenture on June 24, 2009 and any First Lien Notes and related note guarantees issued
in exchange therefore in accordance with the registration rights agreement relating to the
First Lien Notes;




     (iv) the Incurrence by the Company or any Restricted Subsidiary of the Company of
Indebtedness and Obligations represented by Capital Lease Obligations, Attributable Debt,
mortgage financings or purchase money obligations, in each case,



69









 







Incurred for the purpose of
financing all or any part of the purchase price or cost of construction or improvement of
property, plant or equipment used or useful in the business of the Company or such
Restricted Subsidiary of the Company, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness
Incurred pursuant to this clause (iv), not to exceed the greater of (1) $20.0 million and
(2) 3.5% of Total Assets at any time outstanding;




     (v) the Incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be Incurred under Section 4.09(a) or Section 4.09(b)(ii), (iii), (iv),
(v), (x) or (xv);




     (vi) the Incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness or the issuance of Preferred Stock between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:




     (A) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be unsecured and expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Second Lien Notes, in the case
of the Company, or the Note Guarantee, in the case of a Guarantor; and




     (B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness or Preferred Stock being held by a Person other than the
Company or a Restricted Subsidiary of the Company and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute
an Incurrence of such Indebtedness or Preferred Stock by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by this
clause (vi);




     (vii) the Incurrence by the Company or any Restricted Subsidiary of the Company of
Hedging Obligations, provided that such Hedging Obligations were incurred in the ordinary
course of business and not for speculative purposes;




     (viii) the guarantee by the Company or any Restricted Subsidiary of the Company of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to
be Incurred by another provision of this Section 4.09;




     (ix) Indebtedness and Obligations in connection with one or more standby letters of
credit, guarantees, performance or surety bond or other reimbursement obligations, in each
case, issued in the ordinary course of business and not in connection with the borrowing of
money;




     (x) the Incurrence by the Company or any Restricted Subsidiary of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness Incurred to refund,



70









 







refinance
or replace any Indebtedness Incurred pursuant to this clause (x), not to exceed
$10.0 million;




     (xi) Indebtedness of the Company or any Restricted Subsidiary arising from the honoring
by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within five Business Days following its Incurrence;




     (xii) Indebtedness arising in connection with endorsement of instruments for deposit in
the ordinary course of business;




     (xiii) customary indemnification, adjustment of purchase price or similar obligations,
including title insurance, of the Company or any Restricted Subsidiary, in each case,
Incurred in connection with the disposition of any assets of the Company or any such
Restricted Subsidiary (other than guarantees Incurred by any Person acquiring all or any
portion of such assets for the purpose of financing such acquisition) so long as the amount
does not exceed the gross proceeds actually received by the Company or any Restricted
Subsidiary thereof in connection with such disposition;




     (xiv) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness to the
extent that the net proceeds thereof are promptly deposited to defease or to satisfy and
discharge the Second Lien Notes;




     (xv) the Incurrence by the Company or a Guarantor of Indebtedness (including the Second
Lien Notes issued on the Issue Date) Incurred for the purpose of financing all or any part
of the purchase price or cost of construction or improvement of property, plant or equipment
(including the acquisition of Capital Stock of a Person that becomes a Restricted
Subsidiary) used in a Permitted Business, in an aggregate amount, including all Permitted
Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred
pursuant to this clause (xv), not to exceed $75.0 million at any one time outstanding;




     (xvi) the Incurrence by any Foreign Subsidiary of Indebtedness in an aggregate amount
not to exceed $10.0 million at any one time outstanding; and




     (xvii) the Incurrence by the Company or any Restricted Subsidiary of Capital Lease
Obligations Incurred on behalf or otherwise at the behest of a Qualified Customer that
directly or indirectly through a similar lease arrangement with the Company pays all costs
attributable thereto; provided, however, that both leases have substantially similar terms,
including, but not limited to, having the same expiration date, payment and termination
provisions; and provided further, however, that the Company or any Restricted Subsidiary
shall immediately terminate its lease with a Qualified Customer that created the Capital
Lease Obligation permitted to be Incurred pursuant to this clause (xvii) upon the
termination by such Qualified Customer of its lease with the Company or such Restricted
Subsidiary.



71









 





          For purposes of determining compliance with this Section 4.09, in the event that an item of
Indebtedness, Disqualified Stock of Preferred Stock (or any portion thereof) meets the criteria of
more than one of the categories of Permitted Debt described in clauses (i) through (xvii) of
Section 4.09(b) or is entitled to be Incurred pursuant to Section 4.09(a), the Company shall, in
its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of
Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner and at
any time that complies with this Section 4.09.



          (c) 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 Company based on the relevant currency exchange
rate in effect on the date such Indebtedness was Incurred, in the case
of term debt, or first committed, in the case of revolving credit debt; provided that if such
Indebtedness is Permitted Refinancing Indebtedness Incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar
denominated restriction to be exceeded if calculated by the Company at the relevant currency
exchange rate in effect on the date of such refinancing, such U.S. dollar denominated restriction
shall be deemed not to have been exceeded so long as the principal amount of such Permitted
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 may be Incurred pursuant to this Section 4.09 will not be deemed to be exceeded
with respect to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rate of currencies.



          (d) The Company shall not Incur any Indebtedness (including Permitted Debt) that is
contractually subordinate in right of payment to any other Indebtedness of the Company unless such
additional Indebtedness is also contractually subordinate in right of payment to the Second Lien
Notes on substantially identical terms. The Company shall not permit any Guarantor to Incur any
Indebtedness that is contractually subordinate in right of payment to any other Indebtedness of
such Guarantor unless it is contractually subordinate in right of payment to such Guarantor’s Note
Guarantee on substantially identical terms. For purposes of the foregoing, no Indebtedness of the
Company or any Guarantor will be deemed to be contractually subordinated in right of payment to any
other Indebtedness of the Company or such Guarantor solely by reason of any Liens or guarantees
arising or created in respect thereof or by virtue of the fact that the holders of any secured
Indebtedness have entered into intercreditor agreements giving one or more of such holders priority
over the other holders in the collateral held by them.


Section 4.10. Asset Sales.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale of any Collateral unless:




     (i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value of the
Collateral sold or otherwise disposed of;



72









 






     (ii) the Fair Market Value is set forth in an Officers’ Certificate delivered to the
Second Lien Trustee;




     (iii) at least 75% of the consideration received in the Asset Sale of the Collateral by
the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or
Permitted Assets constituting Collateral or a combination thereof. For purposes of this
provision, each of the following will be deemed to be cash:




     (A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet, of the Company or any Restricted Subsidiary (other than
contingent liabilities, liabilities that are by their terms subordinated to the
Second Lien Notes or any Note Guarantee and liabilities to
the extent owed to the Company or any Restricted Subsidiary of the Company)
that are assumed by the transferee of any such assets pursuant to a customary
novation agreement that releases the Company or such Restricted Subsidiary from
further liability; and




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that within 180 days are converted
by the Company or such Restricted Subsidiary into cash, to the extent of the cash
received in that conversion; and




     (iv) the consideration (to the extent they are not Excluded Assets) received from such
Asset Sale is concurrently added to the Collateral securing the Second Lien Notes.



          Within 365 days after the receipt of any Net Proceeds from an Asset Sale of Collateral, the
Company or the applicable Restricted Subsidiary may apply those Net Proceeds:




     (i) to repay or prepay Priority Lien Debt (and, in the case of revolving loans and
other similar obligations, permanently reduce the commitment thereunder);




     (ii) to repay or prepay Junior Lien Debt (other than the Second Lien Notes) (and, in
the case of revolving loans and other similar obligations, permanently reduce the commitment
thereunder) on a pro rata basis, but only up to an aggregate principal amount equal to such
Net Proceeds to be used to repay Indebtedness pursuant to this clause (i) multiplied by a
fraction, the numerator of which is the aggregate principal amount of such Indebtedness to
be repaid, prepaid, defeased, redeemed, purchased or otherwise retired and the denominator
of which is the aggregate principal amount of all Junior Lien Debt, based on amounts
outstanding on the date of closing of such Asset Sale; provided that the Company uses the
remaining Net Proceeds to repay Indebtedness pursuant to this clause (i) to make an offer to
purchase (an “Asset Sale Offer”) from the Holders of the Second Lien Notes on a pro rata
basis, an aggregate principal amount of Second Lien Notes equal to such remaining Net
Proceeds at a purchase price equal to 100% of the principal amount thereof, plus accrued
interest and Additional Interest, if any, to the payment date; or



73









 






     (iii) to make a capital expenditure on Permitted Assets constituting Collateral or
acquire Permitted Assets; provided, however, that such assets are concurrently with their
acquisition added to the Collateral securing the Second Lien Notes;


provided that, in the case of clause (ii) above, a binding commitment shall be treated as a
permitted application of the Net Proceeds from the date of such commitment so long as such
commitment requires that such Net Proceeds shall be applied to satisfy such commitment within 180
days of such commitment and such commitment is not terminated or abandoned. Pending the final
application of any Net Proceeds, the Company may temporarily invest the Net Proceeds in any manner
that is not prohibited by this Indenture.




          Any Net Proceeds from Asset Sales that are not applied or invested as provided in the
preceding paragraph shall constitute “Collateral Excess Proceeds.” When the aggregate
amount of Collateral Excess Proceeds exceeds $15.0 million, or, at the Company’s option,
earlier, the Company shall make an Asset Sale Offer to all Holders of Second Lien Notes and all
holders of other Junior Lien Debt that may be purchased out of the Collateral Excess Proceeds. The
offer price in any Asset Sale Offer shall be equal to 100% of principal amount (or accreted value,
if applicable) plus accrued and unpaid interest to the date of purchase (subject to the rights of
holders of record on the relevant record date to receive interest payable on the relevant interest
payment date), and shall be payable in cash. If any Collateral Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Collateral Excess Proceeds for any
purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Second
Lien Notes and other Junior Lien Debt tendered into such Asset Sale Offer exceeds the amount of
Collateral Excess Proceeds, the Second Lien Notes and such other Junior Lien Debt shall be
purchased on a pro rata basis based upon the principal amount of the Second Lien Notes and the
other Junior Lien Debt tendered. Upon completion of each Asset Sale Offer, the amount of
Collateral Excess Proceeds shall be reset at zero.



          (b) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale (other than an Asset Sale of Collateral) unless:




     (i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of;




     (ii) the Fair Market Value is set forth in an Officers’ Certificate delivered to the
Second Lien Trustee; and




     (iii) at least 75% of the consideration received in the Asset Sale by the Company or
such Restricted Subsidiary is in the form of cash, Cash Equivalents or Permitted Assets or a
combination thereof. For purposes of this provision, each of the following shall be deemed
to be cash:




     (A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet, of the Company or any Restricted Subsidiary (other than
contingent liabilities, liabilities that are by their terms subordinated to the
Second Lien Notes or any Note Guarantee and liabilities to



74









 







the extent owed to the
Company or any Restricted Subsidiary of the Company) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability; and




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that within 180 days are converted
by the Company or such Restricted Subsidiary into cash, to the extent of the cash
received in that conversion.



          Within 365 days after the receipt of any Net Proceeds from an Asset Sale (other than an Asset
Sale of Collateral) pursuant to Section 4.10(b) above, the Company or the applicable Restricted
Subsidiary may apply those Net Proceeds:




     (i) to repay or prepay secured Indebtedness or any Indebtedness of a Restricted
Subsidiary of the Company that is not a Guarantor, in each case other than Indebtedness owed
to the Company or a Restricted Subsidiary of the Company and, if such Indebtedness is
revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto,




     (ii) to make a capital expenditure, or




     (iii) to acquire Permitted Assets.


provided that, in the case of clauses (ii) and (iii) above, a binding commitment shall be treated
as a permitted application of the Net Proceeds from the date of such commitment so long as such
commitment requires that such Net Proceeds shall be applied to satisfy such commitment within 180
days of such commitment and such commitment is not terminated or abandoned. Pending the final
application of any Net Proceeds, the Company may temporarily invest the Net Proceeds in any manner
that is not prohibited by this Indenture.




          Any Net Proceeds from Asset Sales that are not applied or invested as provided in the
preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess
Proceeds exceeds $15.0 million or earlier at the Company’s option, the Company shall make an Asset
Sale Offer to all Holders of Second Lien Notes and all holders of other Indebtedness that is pari
passu with the Second Lien Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase or redeem with the proceeds of sales of assets (including,
without limitation, the Holders of the First Lien Notes) to purchase the maximum principal amount
of Second Lien Notes and such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount (or
accreted value, if applicable) plus accrued and unpaid interest to the date of purchase (subject to
the rights of holders of record on the relevant record date to receive interest payable on the
relevant interest payment date), and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of Second Lien Notes and
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Company shall purchase



75









 







the Second Lien Notes and such other pari passu Indebtedness
on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall
be reset at zero.


Section 4.11. Transactions with Affiliates.




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




     (i) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted Subsidiary with a Person
that is not an Affiliate of the Company; and




     (ii) the Company delivers to the Second Lien Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $2.5 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with this
Section 4.11 and (x) that such Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors of the Company or (y) a copy
of an opinion as to the fairness to the Company or such Restricted Subsidiary of
such Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $20.0 million, an
opinion as to the fairness to the Company or the relevant Restricted Subsidiary of
such Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.



          (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall
not be subject to the provisions of Section 4.11(a):




     (i) any employment or consulting agreement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business of the Company or such Restricted
Subsidiary and payments pursuant thereto and the issuance of Capital Stock of the Company
(other than Disqualified Stock) to directors and employees pursuant to stock option or stock
ownership plans;




     (ii) transactions between or among the Company and/or its Restricted Subsidiaries;



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     (iii) transactions with a Person (other than an Unrestricted Subsidiary) that is an
Affiliate of the Company solely because the Company owns directly, or through a Restricted
Subsidiary, an Equity Interest in, or controls, such Person;




     (iv) payment of reasonable and customary compensation or fees to any directors, or the
execution of customary expense reimbursement, indemnification or similar arrangements with
any directors and officers, of the Company or its Restricted Subsidiaries in the ordinary
course of business;




     (v) sales or issuances of Equity Interests (other than Disqualified Stock) to
Affiliates, directors, officers, employees or consultants of the Company;




     (vi) Permitted Investments (other than pursuant to clause (3) of the definition of
Permitted Investments) and Restricted Payments that are permitted by the provisions of
Section 4.07 of this Indenture; and




     (vii) transactions pursuant to written agreements entered into or assumed in connection
with acquisitions of other businesses with Persons who were not Affiliates prior to such
acquisitions and such transactions are approved by a majority of the Board of Directors of
the Company.


Section 4.12. Liens.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or suffer to exist any Lien to secure Indebtedness, Obligations
in respect thereof or trade payables, on any asset now owned or hereafter acquired, except
Permitted Liens; provided that the Company and its Restricted Subsidiaries may incur Liens (in
addition to Permitted Liens) securing Indebtedness on property or assets that are not Collateral
if:



          (a) in the case of any Liens securing Indebtedness that is expressly subordinate or junior in
right of payment to the Second Lien Notes, the Second Lien Notes are secured by a Lien on such
property or assets that is senior in right of priority to such Liens; and



          (b) in the case of all Liens securing other Indebtedness, the Second Lien Notes are equally
and ratably secured by a Lien on such property or assets.


Section 4.13. Business Activities.




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


Section 4.14. Offer to Repurchase upon a Change of Control.




          (a) If a Change of Control occurs, unless the Company has previously or concurrently mailed a
redemption notice with respect to all outstanding Second Lien Notes as described in Section 3.07
hereof, each Holder of Second Lien Notes shall have the right to



77









 







require the Company to repurchase
all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that
Holder’s Second Lien Notes pursuant to an offer (a “Change of Control Offer”). In the Change of
Control Offer, the Company shall offer a payment (a “Change of Control Payment”) in cash equal to
not less than 101% of the aggregate principal amount of Second Lien Notes repurchased plus accrued
and unpaid interest and Additional Interest, if any, on the Second Lien Notes repurchased, to the
date of repurchase (subject to the
right of the Holders of record on the relevant record date to receive interest due on the
relevant interest payment date). Within 30 days following any Change of Control, the Company shall
mail a notice to the Second Lien Trustee and each Holder describing the transaction or transactions
that constitute the Change of Control and offering to repurchase Second Lien Notes on the change of
control payment date specified in the notice (the “Change of Control Payment Date”), which date
shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures described in Section 3.08.



          (b) On the Change of Control Payment Date, the Company or its designated agent shall, to the
extent lawful:




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




     (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Second Lien Notes or portions of Second Lien Notes properly tendered; and




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



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



          (d) The Company shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.



          (e) Notwithstanding anything to the contrary in this Section 4.14, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 and all other provisions of this Indenture applicable
to a Change of Control Offer made by the Company and purchases all Second Lien Notes validly
tendered and not withdrawn under the Change of Control Offer.



          (f) Second Lien Notes repurchased by the Company pursuant to a Change of Control Offer shall
have the status of Second Lien Notes issued but not outstanding or shall be



78









 







retired and canceled at
the option of the Company. Second Lien Notes purchased by a third party pursuant to
Section 4.14(e) shall have the status of Second Lien Notes issued and outstanding.


Section 4.15. Limitation on Sale and Leaseback Transactions.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into
any Sale and Leaseback Transaction; provided that the Company or any of its Restricted Subsidiaries
may enter into a Sale and Leaseback Transaction if:



          (a) the Company or such Restricted Subsidiary, as applicable, could have (i) Incurred
Indebtedness in an amount equal to the Attributable Debt relating to such Sale and Leaseback
Transaction and (ii) Incurred a Lien to secure such Indebtedness pursuant to Section 4.12 hereof;



          (b) the gross cash proceeds of that Sale and Leaseback Transaction are at least equal to the
Fair Market Value of the property that is the subject of that Sale and Leaseback Transaction; and



          (c) the transfer of assets in that Sale and Leaseback Transaction is permitted by, and the
Company applies the proceeds of such transaction in compliance with, Section 4.10 hereof.


Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.




          (a) The Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if no
Default or Event of Default would be in existence following such designation; provided that:




     (i) the aggregate Fair Market Value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary so designated (including any guarantee by
the Company or any Restricted Subsidiary of any Indebtedness of such Subsidiary) shall be
deemed to be an Investment made as of the time of the designation and that such Investment
would be permitted under Section 4.07 hereof;




     (ii) any guarantee by the Company or any Restricted Subsidiary thereof of any
Indebtedness of the Subsidiary being so designated shall be deemed to be an Incurrence of
Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the
time of such designation, and such Incurrence of Indebtedness would be permitted under
Section 4.09 hereof; and




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


provided, further, that such designation shall only be permitted if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.






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          (b) The Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that:




     (i) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is permitted
under Section 4.09, calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period;




     (ii) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed
to be made as of the time of such designation and such designation shall only be permitted
if such Investments would be permitted under Section 4.07;




     (iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.12;




     (iv) no Default or Event of Default would be in existence following such designation;
and




     (v) to the extent required under Section 4.18, such Unrestricted Subsidiary becomes a
Guarantor and executes a supplemental indenture and joinder to the Security Documents and
delivers an Opinion of Counsel reasonably satisfactory to the Second Lien Trustee within 10
Business Days of the date on which it is designated to the effect that such supplemental
indenture and Security Documents have been duly authorized, executed and delivered and
constitute legal, valid and binding agreements of such Subsidiary, enforceable against such
Subsidiary in accordance with their terms.


Section 4.17. Payments for Consent.




          The Company 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 Second
Lien Notes for or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Second Lien Notes unless such consideration is offered to be
paid to all Holders of the Second Lien Notes and is paid to all Holders of the Second Lien Notes
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 4.18. Additional Guarantees.




          (a) If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary on or after the Issue Date, then that newly acquired or created Domestic Subsidiary
shall become a Guarantor and execute a supplemental indenture and execute joinders to the Security
Documents.



          (b) If any Restricted Subsidiary of the Company guarantees any Indebtedness of the Company or
any Guarantor, then such Restricted Subsidiary shall promptly become a Guarantor and execute a
supplemental indenture and a joinder agreement to the Security Documents providing for a Note
Guarantee and deliver an Opinion of Counsel
reasonably



80









 







satisfactory to the Second Lien Trustee that
such supplemental Indenture and Security Documents have been duly authorized, executed and
delivered and constitute legal, valid, binding and enforceable obligations.



          (c) Notwithstanding the preceding paragraph, any Note Guarantee shall provide by its terms
that it shall be automatically and unconditionally released and discharged under the circumstances
described under Section 11.05 hereof.


Section 4.19. Impairment of Security Interest.




          (a) Subject to the rights of the holders of Permitted Liens, the Company shall not, and shall
not permit any of its Restricted Subsidiaries to, take or knowingly or negligently omit to take,
any action, which action or omission would or could reasonably be expected to have the result of
materially impairing the security interest with respect to the Collateral for the benefit of the
Collateral Trustee and the Holders of the Second Lien Notes, subject to Section 10.08(a) hereof.



          (b) The Company shall not amend, modify or supplement, or permit or consent to any amendment,
modification or supplement of, the Security Documents in any way that would be adverse to the
Holders of the Second Lien Notes in any material respect, except as described in the Security
Documents or as permitted under Section 9.02 hereof.


Section 4.20. After-Acquired Property.




          (a) Promptly following the acquisition by the Company or any Guarantor of any After Acquired
Property, the Company or such Guarantor shall execute and deliver such mortgages, deeds of trust,
security instruments, financing statements and certificates and Opinions of Counsel as shall be
reasonably necessary to vest in the Collateral Trustee a perfected security interest in such After
Acquired Property and to have such After Acquired Property added to the Collateral including, but
not limited to those items set forth in Section 4.22 hereof, mutatis mutandis, and the Leasing
Deliverables, where applicable, in each case, in respect of such After Acquired Property and
thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to
such After Acquired Property to the same extent and with the same force and effect.



          (b) If any After Acquired Property constitutes real property, then the Company or the relevant
Guarantor shall:




          (i) deliver to the Collateral Trustee copies of any environmental reports prepared with
respect to the After Acquired Property promptly following the completion of such reports,
and




          (ii) if reasonably requested by the Collateral Trustee with respect to After Acquired
Property with a Fair Market Value on the date of acquisition of at least $5.0 million,
deliver to the Collateral Trustee within 180 days following the acquisition of such After
Acquired Property, Phase I environmental reports with respect to such After Acquired
Property in form and substance and from professional firms reasonably acceptable to the
Collateral Trustee and to the extent that any “recognized environmental



81









 







conditions” are
specified in such Phase I reports, cause such firms to generate and provide the Collateral
Trustee with a range of most likely and worst case estimated costs relating to such
recognized environmental conditions.


Except where an Event of Default has occurred and is continuing, the Collateral Trustee shall keep
confidential any environmental reports delivered to the Collateral Trustee pursuant to this Section
4.20(b).



Section 4.21. Perfection of Liens Securing Collateral; Further Assurances; Insurance.




          (a) On the Issue Date, the Company and the Guarantors shall have used their reasonable best
efforts to perfect the security interests created in the Security Documents in the Collateral for
the benefit of the Secured Debt Representatives and holders of Secured Debt Obligations; provided,
that to the extent any such security interest was not perfected by the Issue Date, the Company and
the Guarantors shall use reasonable best efforts to have all security interests perfected, to the
extent required by the Security Documents, promptly following the Issue Date, but in any event
shall perfect such Lien no later than 120 days following the Issue Date.



          (b) The Company and the Guarantors shall execute any and all further documents, financing
statements, agreements and instruments, and take all further action that may be required under
applicable law, or that the Second Lien Trustee or the Collateral Trustee may reasonably request,
in order to grant, preserve, protect and perfect the validity and priority of the security
interests created or intended to be created by the Security Documents in the Collateral. In
addition, from time to time, the Company shall reasonably promptly secure the obligations under
this Indenture and the Security Documents by pledging or creating, or causing to be pledged or
created, perfected security interests with respect to the Collateral. Such security interests and
Liens shall be created under the Security Documents and other security agreements, mortgages, deeds
of trust and other instruments and documents in form and substance reasonably satisfactory to the
Collateral Trustee.



          (c) The Company and each of the Guarantors shall do or cause to be done all acts and things
that may be required, or that the Collateral Trustee from time to time may reasonably request, to
assure and confirm that the Collateral Trustee holds, for the benefit of the Secured Debt
Representatives and holders of Secured Debt Obligations, duly created and
enforceable and perfected Liens upon the Collateral (including any property or assets that are
acquired or otherwise become Collateral after the Second Lien Notes are issued), in each case, as
contemplated by, and with the Lien priority required under, the Secured Debt Documents; provided
that the Company and the Guarantors shall not be required to provide, and the Collateral Trustee
shall not request, any additional Mortgages in respect of any additional real property constituting
Collateral which has a Fair Market Value of less than $5.0 million.



          (d) Upon the reasonable request of the Collateral Trustee or any Secured Debt Representative
at any time and from time to time, the Company and each of the Guarantors shall promptly execute,
acknowledge and deliver such security documents, instruments, certificates, notices and other
documents, and take such other actions as may be reasonably required, or that the Collateral
Trustee may reasonably request, to create, perfect, protect, assure or enforce the



82









 







Liens and
benefits intended to be conferred, in each case as contemplated by the Secured Debt Documents for
the benefit of the holders of Secured Debt Obligations.



          (e) The Company and the Guarantors shall:




     (i) keep their properties adequately insured at all times by financially sound and
reputable insurers;




     (ii) maintain such other insurance, to such extent and against such risks (and with
such deductibles, retentions and exclusions), including fire and other risks insured against
by extended coverage, as is customary with companies in the same or similar businesses
operating in the same or similar locations, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by them;




     (iii) maintain such other insurance as may be required by law; and




     (iv) maintain such other insurance as may be required by the Security Documents.



          (f) The Collateral Trustee shall be named as an additional insured and loss payee as its
interests may appear, to the extent required by the Security Documents. Upon the request of the
Collateral Trustee, the Company and the Guarantors shall furnish to the Collateral Trustee full
information as to their property and liability insurance carriers.



          (g) Upon reasonable request of the Collateral Trustee at any time after an Event of Default
has occurred and is continuing, the Company shall, and shall cause its Restricted Subsidiaries to,
(i) permit the Collateral Trustee or any advisor, auditor, consultant, attorney or representative
acting for the Collateral Trustee, upon reasonable notice to the Company and during normal business
hours, to visit and inspect any of the property of the Company and its Restricted Subsidiaries, to
review, make extracts from and copy the books and records of the Company and its Restricted
Subsidiaries relating to any such property, and to discuss any matter pertaining to any such
property with the officers and employees of the Company and its Restricted Subsidiaries, and (ii)
deliver to the Collateral Trustee such reports, including valuations, relating to any such property
or any Lien thereon as the Collateral Trustee may reasonably request. The Company will promptly
reimburse the Second Lien Trustee and
Collateral Trustee for all reasonable costs and expenses incurred by the Second Lien Trustee
or Collateral Trustee in connection therewith, including all reasonable fees and charges of any
advisors, auditors, consultants, attorneys or representatives acting for the Second Lien Trustee or
for the Collateral Trustee.



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Section 4.22. Real Estate.




          (a) On or prior to the Issue Date, or as reasonably practicable after the Issue Date, but in
no event later than 120 days after the Issue Date (such time and date, the “Mortgage Closing
Date”), the Issuer and the Guarantors will deliver to the Collateral Trustee, with respect to the
Initial Mortgaged Property, in each case subject to Section 4.21(c), the following:




          (A) Mortgages, substantially in the form of those executed and delivered in connection
with the Company’s First Lien Notes Indenture (with such changes as may be reasonably
satisfactory to the Collateral Trustee and its counsel to account for local law matters and
the substitutions of the beneficiary or mortgagee thereunder) and otherwise in form and
substance reasonably satisfactory to the Collateral Trustee (the “Initial Mortgages”);




          (B) evidence that counterparts of the Initial Mortgages have been duly executed,
acknowledged and delivered and are in form suitable for filing or recording in all filing or
recording offices that the Collateral Trustee may reasonably deem necessary or reasonably
desirable in order to create a valid and subsisting Lien on the property (subject to Liens
permitted under the Note Documents) described therein in favor of the Collateral Trustee for
the benefit of the holders of Secured Debt Obligations and that all filing and recording
taxes and fees have been paid;




          (C) fully paid American Land Title Association Lender’s Extended Coverage title
insurance policies (“Mortgage Policies”) with respect to the Initial Mortgaged Property,
substantially in the same form and with the same endorsements (to the extent available at
customary rates) as those policies issued in connection with the Original Financing (except
to the extent additional endorsements would be customarily provided for similarly situated
real property) and in amounts reasonably acceptable to the Collateral Trustee, issued by
First American Title Company or title insurers reasonably acceptable to the Collateral
Trustee, insuring the Mortgages to be valid and subsisting Liens on the property described
therein, free and clear of all defects (including, but not limited to, mechanics’ and
materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for
such other affirmative insurance (including endorsements for mechanics’ and materialmen’s
Liens) as the Collateral Trustee may deem necessary or reasonably desirable;




          (D) to the extent required for issuance of a Mortgage Policy containing customary
coverage for survey matters, American Land Title Association/American Congress on Surveying
and Mapping form surveys, for which all necessary fees (where applicable) have been paid,
and dated no more than 60 days before the day of delivery of
the applicable Mortgage (or as of such date as may be required by the issuer of the
applicable Mortgage Policy), certified to the Collateral Trustee and the issuer of the
Mortgage Policies in a manner reasonably satisfactory to the Collateral Trustee by a land
surveyor duly registered and licensed in the state in which the property described in such
survey is located and reasonably acceptable to the Collateral Trustee, showing all buildings
and other improvements, the location of any easements noted in the Mortgage Policies, rights
of way, building set-back lines and other dimensional regulations
(each  to



84









 







the extent
plottable) and the absence of encroachments, either by such improvements to or on such
property, and other defects, which cannot otherwise be insured over in the Mortgage
Policies, other than encroachments and other defects reasonably acceptable to the Collateral
Trustee;




          (E) evidence of the insurance required by Section 4.21(e) hereof with respect to the
Initial Mortgaged Property;




          (F) favorable opinions of local counsel to the Company or the respective Guarantor
granting each Initial Mortgage in states in which the real property to be covered by an
Initial Mortgage is located, with respect to the enforceability and perfection of the
Mortgages and any related fixture filings, each in form no less favorable, in the reasonable
judgment of the Collateral Trustee, than the opinions rendered by such local counsel with
respect to the Mortgages executed and delivered in connection with the Original Financing,
and otherwise in form and substance reasonably satisfactory to the Collateral Trustee
(including that the relevant mortgagor is validly existing and in good standing, corporate
power, due authorization, execution and delivery, no conflicts and no consents); and




          (G) such other consents, agreements and confirmations of lessors and third parties as
the Collateral Trustee may reasonably deem necessary, and evidence that all other actions
reasonably requested by the Collateral Trustee that are necessary in order to create valid
first and subsisting Liens on the property described in the Mortgage has been taken.



          (b) Notwithstanding any of the foregoing, the Company and the Guarantors shall only be
required to use their commercially reasonable efforts to obtain the Leasing Deliverables related to
the granting of a Mortgage with respect to leasehold interests in real property subject to this
Section 4.22. If, after using such commercially reasonable efforts, the Company or a Guarantor, as
the case may be, is unable to obtain the Leasing Deliverables, the leasehold interest shall be
considered to be an Excluded Asset hereunder.


Section 4.23. Covenant Suspension.




          (a) Following the first day (the “Suspension Date”) that:




     (i) the Second Lien Notes have an Investment Grade Rating from both of the Rating
Agencies; and




     (ii) no Default or Event of Default has occurred and is continuing under this Indenture


(together, the “Suspension Conditions”), the Company and the Restricted Subsidiaries will not be
subject to Sections 4.07, 4.08, 4.09, 4.10, 4.11, and 5.01(a)(iv) of this Indenture with respect to
the Second Lien Notes (collectively, the “Suspended Covenants”).




          (b) In the event that the Company and the Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of Section 4.23(a) and, on



85









 







any subsequent
date (the “Reversion Date”), either or both of the Rating Agencies withdraw their ratings or
downgrade their ratings assigned to the Second Lien Notes below the required Investment Grade
Ratings, then the Company and the Restricted Subsidiaries shall thereafter again be subject to the
Suspended Covenants until the Suspension Conditions are again satisfied with respect to future
events. The period of time between the Suspension Date and the Reversion Date is referred to in
this description as the “Suspension Period.” Notwithstanding that the Suspended Covenants may be
reinstated, no Default or Event of Default under this Indenture shall be deemed to have occurred as
a result of a failure to comply with the Suspended Covenants during the Suspension Period. During
any Suspension Period, the Company may not designate any Subsidiary as an Unrestricted Subsidiary
unless the Company would have been permitted to designate such Subsidiary as an Unrestricted
Subsidiary if a Suspension Period had not been in effect for any period.



          (c) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be
classified to have been Incurred pursuant to Section 4.09(a) or one of the clauses set forth in
4.09(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the
Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and
outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to
be Incurred pursuant to Section 4.09(a) or Section 4.09(b), such Indebtedness shall be deemed to
have been outstanding on the Issue Date, so that it is classified as permitted under
Section 4.09(b)(ii). Calculations made after the Reversion Date of the amount available to be made
as Restricted Payments under Section 4.07 shall be made as though Section 4.07 had been in effect
since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made
during the Suspension Period shall reduce the amount available to be made as Restricted Payments
under Section 4.07(a) and the items specified in subclauses (C)(1) through (C)(5) of
Section 4.07(a) shall increase the amount available to be made under Section 4.07(a). For purposes
of determining compliance with Section 4.10, the amount of Excess Proceeds and Collateral Excess
Proceeds shall be deemed to be reset to zero.



ARTICLE FIVE

SUCCESSORS



Section 5.01. Merger, Consolidation or Sale of Assets.




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




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



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     (ii) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or the Person to which such sale, assignment, transfer,
conveyance or other disposition has been made assumes all the obligations of the
Company under this Indenture, the Second Lien Notes and the Security Documents, in
each case, pursuant to agreements reasonably satisfactory to the Second Lien
Trustee;




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




     (iv) the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition has been made shall, on the date of such transaction
after giving pro forma effect thereto and any related financing transactions as if
the same had occurred at the beginning of the applicable four-quarter period, be
permitted to either (A) Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.09(a) or (B) the applicable Fixed Charge Coverage Ratio of the Company or
the Person formed by or surviving any such consolidation or merger (if other than
the Company) would be greater than the applicable Fixed Charge Coverage Ratio of the
Company immediately prior to such transaction;




     (v) each Guarantor, unless such Guarantor is the Person with which the Company
has entered into a transaction under this Section 5.01, shall have by amendment to
its Note Guarantee confirmed that its Guarantee shall apply to the obligations of
the Company or the surviving Person in accordance with the Second Lien Notes and
this Indenture; and




     (vi) the Company has delivered to the Second Lien Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation, merger
or disposition and such supplemental indenture, if any, comply with this Indenture.



          (b) For purposes of this Section 5.01, (i) paragraph (a)(iv) shall not apply to a merger,
consolidation, sale, assignment, transfer, conveyance or other disposition of assets between or
among the Company and any of the Guarantors, and (ii) a lease of all or substantially
all of the Company’s property or assets in one or more related transactions shall constitute a
“transfer” of such assets.


Section 5.02. Successor Corporation Substituted.




          Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company, in accordance with
Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which
the Company is merged or to which such sale, assignment, transfer, 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, assignment, conveyance or other disposition, the provisions of



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this
Indenture referring to the “Company” shall refer instead to the successor corporation and not to
the Company), and may exercise all rights and powers of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein.



ARTICLE SIX

DEFAULTS AND REMEDIES



Section 6.01. Events of Default.




          (a) Each of the following is an Event of Default:




     (i) continuance for 30 days of a default in the payment when due of interest on or
Additional Interest, if any, with respect to, the Second Lien Notes;




     (ii) default in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Second Lien Notes;




     (iii) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Section 4.10, 4.14 or 5.01;




     (iv) failure by the Company or any of its Restricted Subsidiaries to comply with any of
the other agreements in this Indenture or the Security Documents for 60 days after written
notice has been given to the Company by the Second Lien Trustee or to the Company and the
Second Lien Trustee by Holders of at least 25% of the outstanding principal amount of the
Second Lien Notes;




     (v) default under any other 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 Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries) (other than Indebtedness owed to the
Company or a Restricted Subsidiary), whether such Indebtedness or guarantee now exists, or
is created after the Issue Date, if that default:




     (A) is caused by a failure to pay principal of, or interest or premium, if any,
on such Indebtedness prior to the expiration of the applicable grace or cure period
provided in such Indebtedness on the date of such default (a “Payment Default”); or




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




and, in each case, 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
which remains outstanding or the maturity of which has been so accelerated, aggregates
$15.0 million or more, provided that if any such default is cured or waived or any such
acceleration is rescinded, or such Indebtedness is repaid, within a period of 20 days from
the continuation of such default beyond the applicable grace or cure period or



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the
occurrence of such acceleration, as the case may be, such Event of Default under this
Indenture and any consequential acceleration of the Second Lien Notes shall be automatically
rescinded, so long as such rescission does not conflict with any judgment or decree;




     (vi) failure by the Company or any of its Restricted Subsidiaries to pay final
non-appealable judgments (to the extent not paid or covered by insurance provided by a
reputable carrier) aggregating in excess of $15.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;




     (vii) any security interest and Lien purported to be created by any Security Document
with respect to any Collateral having, individually or in the aggregate, a Fair Market Value
in excess of $15.0 million (a) ceases to be in full force and effect, (b) ceases to give the
Collateral Trustee, for the benefit of the Holders of the Second Lien Notes, the Liens,
rights, powers and privileges purported to be created and granted thereby (including a
perfected second-priority security interest in and Lien on, all of the Collateral
thereunder) in favor of the Collateral Trustee, or (c) is asserted by the Company or any
other Guarantor not to be, a valid, perfected, second priority (except as otherwise
expressly provided in the Indenture or the Collateral Trust Agreement) security interest in
or Lien on the Collateral covered thereby;




     (viii) except as permitted by this Indenture, any Note Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or the Company or any of its Restricted Subsidiaries, or any Person
acting on behalf of the Company or any of its Subsidiaries, shall deny or disaffirm its
obligations under its Note Guarantee;




     (ix) the Company, any of its Significant Subsidiaries or any of its Restricted
Subsidiaries that together constitute a Significant Subsidiary, pursuant to or within the
meaning of Bankruptcy Law:




     (A) commences a voluntary case,




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




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




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




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




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



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




     (C) orders the liquidation of the Company, any of its Significant Subsidiaries
or any of its Restricted Subsidiaries that together constitute a Significant
Subsidiary;




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


Section 6.02. Acceleration.




          (a) In the case of an Event of Default specified in Section 6.01(a)(ix) or Section 6.01(a)(x)
hereof, all outstanding Second Lien Notes shall become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the Second Lien Trustee
or the Holders of at least 25% in aggregate principal amount of the then outstanding Second Lien
Notes may declare all the Second Lien Notes to be due and payable immediately by notice in writing
to the Company specifying the Event of Default. Upon receipt of any such declaration by the
Company, the Second Lien Notes shall become due and payable immediately. The Holders of a majority
in aggregate principal amount of the then outstanding Second Lien Notes by written notice to the
Second Lien Trustee may on behalf of all of the Holders rescind and annul an acceleration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the acceleration) have
been cured or waived.


Section 6.03. Other Remedies.




          (a) If an Event of Default occurs and is continuing, the Second Lien Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, interest, and Additional
Interest, if any, with respect to, the Second Lien Notes or to enforce the performance of any
provision of the Second Lien Notes or this Indenture.



          (b) The Second Lien Trustee may maintain a proceeding even if it does not possess any of the
Second Lien Notes or does not produce any of them in the proceeding. A delay or omission by the
Second Lien Trustee or any Holder of a Second Lien 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.




          The Holders of a majority in aggregate principal amount of the Second Lien Notes then
outstanding by notice to the Second Lien Trustee may on behalf of the Holders of all of the Second
Lien Notes waive any existing Default or Event of Default and its consequences



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hereunder except a
continuing Default or Event of Default in the payment of interest or Additional Interest, if any,
on, premium, if any, or the principal of, the Second Lien Notes.



          (a) The Company shall deliver to the Second Lien Trustee an Officers’ Certificate stating that
the requisite percentage of Holders have consented to any such waiver and attaching copies of such
consents. In case of any such waiver, the Company, the Second Lien Trustee and the Holders shall
be restored to their former positions and rights hereunder and under the Second Lien Notes,
respectively. This Section 6.04 and Section 9.02 shall be in lieu of Section 316(a)(1)(B) of the
TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and
the Second Lien Notes, as permitted by the TIA. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.


Section 6.05. Control by Majority.




          The Holders of a majority in aggregate principal amount of the then outstanding Second Lien
Notes will have the right to direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Second Lien Trustee. However, the
Second Lien Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Second Lien Trustee in personal liability, or that the Second Lien
Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Second Lien
Notes not joining in the giving of such direction and may take any other action it deems proper
that is not inconsistent with any such direction received from Holders of Second Lien Notes.


Section 6.06. Limitation on Suits.




          (a) A Holder of Second Lien Notes may not pursue any remedy with respect to this Indenture,
the Security Documents or the Second Lien Notes unless:




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




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




     (iii) such Holder or Holders offer the Second Lien Trustee indemnity satisfactory to
the Second Lien Trustee against any costs, liability or expense;




     (iv) the Second Lien Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and




     (v) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Second Lien Notes do not give the Second Lien Trustee a direction that is
inconsistent with the request.



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     Such limitations do not apply to the right of any Holder of a Second Lien Note to receive
payment of the principal of, premium or Additional Interest, if any, or interest on, such Second
Lien Note or to bring suit for the enforcement of any such payment, on or after the due date
expressed in the Second Lien Notes, which right shall not be impaired or affected without the
consent of such Holder.



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


Section 6.07. Rights of Holders of Second Lien Notes to Receive Payment.




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


Section 6.08. Collection Suit by Second Lien Trustee.




          If an Event of Default specified in Section 6.01(a)(i) or (a)(ii) occurs and is continuing,
the Second Lien Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal of, premium, if any, interest,
and Additional Interest, if any, remaining unpaid on the Second Lien Notes and interest on overdue
principal and premium, if any, and, to the extent lawful, interest and Additional Interest, if any,
and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Second Lien
Trustee, its agents and counsel.


Section 6.09. Second Lien Trustee May File Proofs of Claim.




          The Second Lien 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 Second Lien Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the
Second Lien Trustee, its agents and counsel) and the Holders of the Second Lien Notes allowed in
any judicial proceedings relative to the Company or any Guarantor (or any other obligor upon the
Second Lien Notes), its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other securities or property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Second Lien Trustee, and in the event that the Second Lien Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Second Lien Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Second Lien Trustee, its agents and counsel, and any other amounts due the Second Lien Trustee
under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Second Lien Trustee, its agents and counsel, and any other
amounts due the Second Lien Trustee



92









 







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
that the Holders may be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Second Lien Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Second Lien
Notes or the rights of any Holder, or to authorize the Second Lien Trustee to vote in respect of
the claim of any Holder in any such proceeding.


Section 6.10. Priorities.




          (a) If the Second Lien Trustee collects any money pursuant to this Article, it shall pay out
the money in the following order:




     First: to the Second Lien 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 Second Lien Trustee and the costs and expenses of
collection;




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




     Third: the balance, if any, to the Company or to such party as a court of competent
jurisdiction shall direct.



          (b) The Second Lien Trustee may fix a record date and payment date for any payment to Holders
of Second Lien Notes pursuant to this Section 6.10.


Section 6.11. Undertaking for Costs.




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



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ARTICLE SEVEN

SECOND LIEN TRUSTEE



Section 7.01. Duties of Second Lien Trustee. Except to the extent, if any, provided otherwise in the TIA:




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



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




     (i) the duties of the Second Lien Trustee shall be determined solely by the express
provisions of this Indenture and the Second Lien 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 Second Lien Trustee; and




     (ii) in the absence of bad faith on its part, the Second Lien 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 Second Lien Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the Second Lien
Trustee, the Second Lien Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein).



          (c) The Second Lien 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;




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




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



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



          (e) No provision of this Indenture shall require the Second Lien Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any



94









 







of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. The Second Lien Trustee shall be under no obligation to exercise any
of its rights and powers under this Indenture at the request of any Holder of Second Lien Notes,
unless such Holder shall have offered to the Second Lien Trustee security and indemnity
satisfactory to it against any loss, liability or expense.



          (f) Money held in trust by the Second Lien Trustee need not be segregated from other funds
except to the extent required by law.


Section 7.02. Certain Rights of Second Lien Trustee.




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



          (b) Before the Second Lien Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Second Lien 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 Second Lien Trustee may consult with counsel and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.



          (c) The Second Lien 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 Second Lien Trustee shall not be liable for any action it takes or omits to take in
good faith that it believes to be authorized or within the discretion or the rights or powers
conferred upon it by this Indenture.



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



          (f) The Second Lien 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 Second Lien Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.



          (g) The Second Lien Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Second Lien Trustee has actual knowledge thereof or
unless written notice of such event is sent to the Second Lien Trustee in accordance with
Section 13.02 hereof, and such notice references the Second Lien Notes.



          (h) In no event shall the Second Lien Trustee be responsible or liable for special, indirect,
or consequential loss or damage of any kind whatsoever (including, but not



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limited to, loss of
profit) irrespective of whether the Second Lien Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.



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



          (j) The Second Lien Trustee may request that the Company 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.


Section 7.03. Individual Rights of Second Lien Trustee.




          The Second Lien Trustee in its individual or any other capacity may become the owner or
pledgee of Second Lien Notes and may become a creditor of, or otherwise deal with, the Company or
any of its Affiliates with the same rights it would have if it were not Second Lien Trustee.
However, in the event that the Second Lien Trustee acquires any conflicting interest as described
in the TIA, it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and duties. The Second
Lien Trustee is also subject to Sections 7.10 and 7.11 hereof.


Section 7.04. [RESERVED].



Section 7.05. Notice of Defaults.




          If a Default or Event of Default occurs and is continuing and if it is known to the Second
Lien Trustee, the Second Lien Trustee shall deliver to Holders of Second Lien 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 relating to the payment of principal, premium, if any, or interest or Additional
Interest, if any, on any Second Lien Note, the Second Lien 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 Second Lien Notes.


Section 7.06. Reports by Second Lien Trustee to Holders of the Second Lien Notes.




          (a) Within 60 days after each December 31 beginning with the December 31 following the date
hereof, and for so long as Second Lien Notes remain outstanding, the Second Lien Trustee shall
deliver to the Holders of the Second Lien 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 Second Lien
Trustee also shall comply with TIA § 313(b). The Second Lien Trustee shall also transmit by mail
all reports as required by TIA § 313(c).



          (b) A copy of each report at the time of its delivery to the Holders of Second Lien Notes
shall be delivered to the Company and filed with the SEC and each stock exchange



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on which the Second Lien Notes are listed in accordance with TIA § 313(d). The Company shall
promptly notify the Second Lien Trustee in writing when the Second Lien Notes are listed on any
stock exchange or any delisting thereof.



Section 7.07. Compensation and Indemnity.




          (a) The Company shall pay to the Second Lien Trustee from time to time reasonable compensation
for its acceptance of this Indenture and services hereunder in accordance with a written schedule
provided by the Second Lien Trustee to the Company. The Second Lien Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Second Lien 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 Second Lien
Trustee’s agents and counsel.



          (b) The Company shall indemnify the Second Lien Trustee for, and hold it harmless against any
and all losses, liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by either of the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be attributable to its gross
negligence or willful misconduct. The Second Lien Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Second Lien Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder.



          (c) The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture and resignation or removal of the Second Lien Trustee.



          (d) To secure the Company’s payment obligations in this Section, the Second Lien Trustee shall
have a Lien prior to the Second Lien Notes on all money or property held or collected by the Second
Lien Trustee, except that held in trust to pay principal and interest on particular Second Lien
Notes. Such Lien shall survive the satisfaction and discharge of this Indenture and resignation or
removal of the Second Lien Trustee.



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


Section 7.08. Replacement of Second Lien Trustee.




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



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          (b) The Second Lien Trustee may resign by notifying the Company in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Second Lien Notes may remove the Second Lien Trustee upon
30 days notice by so notifying the Second Lien Trustee and the Company in writing. The Company may
remove the Second Lien Trustee if:




     (i) the Second Lien Trustee fails to comply with Section 7.10 hereof;




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




     (iii) a custodian or public officer takes charge of the Second Lien Trustee or its
property; or




     (iv) the Second Lien Trustee becomes incapable of acting.



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



          (d) If a successor Second Lien Trustee does not take office within 30 days after the retiring
Second Lien Trustee resigns or is removed, the retiring Second Lien Trustee, the Company, or the
Holders of Second Lien Notes of at least 10% in principal amount of the then outstanding Second
Lien Notes may petition at the expense of the Company any court of competent jurisdiction for the
appointment of a successor Second Lien Trustee.



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



          (f) A successor Second Lien Trustee shall deliver a written acceptance of its appointment to
the retiring Second Lien Trustee and to the Company. Thereupon, the resignation or removal of the
retiring Second Lien Trustee shall become effective, and the successor Second Lien Trustee shall
have all the rights, powers and duties of the Second Lien Trustee under this Indenture. The
successor Second Lien Trustee shall deliver a notice of its succession to Holders. The retiring
Second Lien Trustee shall promptly transfer all property held by it as Second Lien Trustee to the
successor Second Lien Trustee, provided all sums owing to the Second Lien Trustee hereunder have
been paid (including, but not limited to, the fees and expenses of counsel to the Second Lien
Trustee) and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement
of the Second Lien Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Second Lien Trustee.



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Section 7.09. Successor Second Lien Trustee by Merger, Etc.




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


Section 7.10. Eligibility; Disqualification.




          There shall at all times be a Second Lien Trustee hereunder that is a corporation organized
and doing business under the laws of the United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital and surplus of at least
$150.0 million as set forth in its most recent published annual report of condition.



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


Section 7.11. Preferential Collection of Claims Against Company.




          If and when the Second Lien Trustee shall be or become a creditor of the Company (or any other
obligor upon the Second Lien Notes), the Second Lien Trustee shall be subject to the provisions of
the TIA regarding the collection of claims against the Company (or any such other obligor).


Section 7.12. No Representation by Second Lien Trustee.




          The recitals and statements contained herein (except the name, address and jurisdiction of
organization of the Second Lien Trustee) and in the Second Lien Notes (other than the Second Lien
Trustee’s authentication of the Second Lien Notes) shall be taken as the recitals of and statements
of the Company, and the Second Lien Trustee assumes no responsibility for their correctness. The
Second Lien Trustee shall not be responsible for and makes no representations as to the validity or
sufficiency of this Indenture or of the Second Lien Notes (except the Second Lien Trustee’s
certificates of authentication thereof). The Second Lien Trustee shall not be accountable for the
use or application by the Company of the Second Lien Notes or the proceeds thereof. The Second
Lien Trustee shall have no duty to ascertain or
inquire as to the performance of the Company’s covenants in Article Four hereof or otherwise
established by the terms of the Second Lien Notes.



ARTICLE EIGHT

DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Second Lien Notes upon compliance with the conditions set
forth below in this Article Eight.



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Section 8.02. Legal Defeasance and Discharge.




          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all
outstanding Second Lien Notes and all obligations of the Guarantors shall be deemed to have been
discharged with respect to their obligations under the Note Guarantees on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal
Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Second Lien Notes and Note Guarantees,
respectively, which shall thereafter be deemed to be “outstanding” only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and
to have satisfied all its other obligations under such Second Lien Notes and this Indenture (and
the Second Lien Trustee, on demand of and at the expense of the Company, shall execute instruments
in form and substance reasonably satisfactory to the Second Lien Trustee acknowledging the same),
except for the following provisions which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Second Lien Notes to receive solely from the
trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, or interest or premium and Additional Interest, if any, on such
Second Lien Notes when such payments are due, (b) the Company’s obligations with respect to such
Second Lien Notes under Article Two concerning issuing temporary Second Lien Notes, registration of
Second Lien Notes, replacing mutilated, destroyed, lost or stolen Second Lien Notes and the
Company’s obligations under Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Second Lien Trustee hereunder (including, but not limited to, those set forth in
Article VII hereof) and the Company’s and the Guarantors’ obligations in connection therewith and
(d) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.


Section 8.03. Covenant Defeasance.




          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from its obligations under the covenants contained in
Sections 4.07, 4.08, 4.09 (including the incorporation thereof into Section 5.01(a)(iv)), 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and 4.22 hereof and clauses (iv)
and (v) of Section 5.01 hereof with respect to the outstanding Second Lien Notes on and after the
date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”),
and the Second Lien 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 Second Lien Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Second Lien Notes, the Company and the Guarantors 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



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herein or in any other
document and such omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such
Second Lien Notes shall be unaffected thereby. In addition, upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(iii) (except a Default under any
clause of Section 5.01(a) other than clause (iv) or (v)), (iv), (v), (vi), (vii) and (viii) (solely
in the case of (viii) with respect to Significant Subsidiaries or Restricted Subsidiaries that
together constitute a Significant Subsidiary) shall not constitute Events of Default.


Section 8.04. Conditions to Legal or Covenant Defeasance.




          (a) The following shall be the conditions to the application of either Section 8.02 or 8.03
hereof to the outstanding Second Lien Notes:




     (i) the Company must irrevocably deposit with the Second Lien Trustee, in trust, for
the benefit of the Holders of the Second Lien Notes, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and non-callable Government
Securities, in amounts as shall be sufficient, in the opinion of a nationally recognized
firm of independent public accountants in the United States, to pay the principal of, or
interest and premium and Additional Interest, if any, on the outstanding Second Lien Notes
on the Stated Maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Second Lien Notes are being defeased to maturity or to a
particular redemption date;




     (ii) in the case of Legal Defeasance, the Company shall have delivered to the Second
Lien Trustee an Opinion of Counsel reasonably acceptable to the Second Lien Trustee
confirming that (a) the Company has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling or (b) since the Issue Date, there has been
a change in the applicable U.S. federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Second Lien Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;




     (iii) in the case of Covenant Defeasance, the Company shall have delivered to the
Second Lien Trustee an Opinion of Counsel reasonably acceptable to the Second Lien Trustee
confirming that the Holders of the outstanding Second Lien Notes will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance
and will be subject to U.S. 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 (other than a Default or Event of Default resulting from the borrowing of
funds to be applied to such deposit);



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




     (vi) the Company must deliver to the Second Lien Trustee an Officers’ Certificate
stating that the deposit was not made by the Company with the intent of preferring the
Holders over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others;




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




     (viii) the Company must deliver to the Second Lien Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent under this Indenture
relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been
complied with.


Section 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.




          (a) Subject to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Second Lien Trustee pursuant to Section 8.04
hereof in respect of the outstanding Second Lien Notes shall be held in trust and applied by the
Second Lien Trustee, in accordance with the provisions of such Second Lien Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Second Lien Trustee may determine, to the Holders of such Second
Lien Notes of all sums due and to become due thereon in respect of principal,
premium and Additional Interest, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.



          (b) The Company shall pay and indemnify the Second Lien Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of the
outstanding Second Lien Notes.



          (c) Anything in this Article Eight to the contrary notwithstanding, the Second Lien Trustee
shall deliver or pay to the Company from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the
opinion of a nationally recognized independent registered public accounting firm expressed in a
written certification thereof delivered to the Second Lien Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.



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Section 8.06. Repayment to the Company.




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


Section 8.07. Reinstatement.




          If the Second Lien Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may
be, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s obligations under this
Indenture and the Second Lien Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof and, in the case of a Legal Defeasance, the
Guarantors’ obligations under their respective Note Guarantees shall be revised
and reinstated as though no deposit had occurred pursuant to Section 8.02 hereof, in each case
until such time as the Second Lien Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any Second Lien Note
following the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Second Lien Notes to receive such payment from the money held by the Second
Lien Trustee or Paying Agent.


Section 8.08. Survival of Rights.




          Notwithstanding the defeasance of the obligations under this Indenture, whether by Legal
Defeasance or by Covenant Defeasance, any obligations of the Company under Section 8.05(b) and
immunities of the Second Lien Trustee under this Indenture (including, but not limited to, the
immunities set forth in Article VII hereof) shall survive.



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ARTICLE NINE

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01. Without Consent of Holders of Second Lien Notes.




          (a) Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Second
Lien Trustee may amend or supplement this Indenture, the Second Lien Notes or the Note Guarantees
without the consent of any Holder of a Second Lien Note:




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




     (ii) to provide for uncertificated Second Lien Notes in addition to or in place of
certificated Second Lien Notes;




     (iii) to provide for the assumption of the Company’s and each Guarantor’s obligations
to Holders of Second Lien Notes in the case of a merger or consolidation or sale of all or
substantially all of the Company’s or such Guarantor’s assets;




     (iv) to make any change that would provide any additional rights or benefits to the
Holders of Second Lien Notes or that does not adversely affect the legal rights under this
Indenture of any such Holder;




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




     (vi) to evidence and provide for the acceptance of appointment of a successor Second
Lien Trustee;




     (vii) to provide for the issuance of Additional Second Lien Notes in accordance with
this Indenture;




     (viii) to conform the text of this Indenture, the Note Guarantees or the Second Lien
Notes to any provision of the “Description of the Second Lien Notes” in the Offering
Circular to the extent that such provision in the “Description of the Second Lien Notes” was
intended to be a verbatim recitation of a provision of this Indenture, the Note Guarantees
or the Second Lien Notes;




     (ix) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Second Lien Notes as permitted by this Indenture, including, without
limitation, to facilitate the issuance and administration of the Second Lien Notes;
provided, however, that such amendment does not adversely affect the rights of Holders of
Second Lien Notes to transfer Second Lien Notes; or




     (x) to comply with the provisions of Section 4.18 hereof.



          (b) The Security Documents may be amended as described in the Collateral Trust Agreement.



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          (c) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Second Lien Trustee of any documents requested under Section 7.02(b) hereof, the Second Lien
Trustee shall join with the Company in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and make any further appropriate agreements
and stipulations that may be therein contained, but the Second Lien Trustee shall not be obligated
to enter into such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.


Section 9.02. With Consent of Holders of Second Lien Notes.




          (a) Except as provided in this Section 9.02, the Company, the Guarantors and the Second Lien
Trustee may amend or supplement this Indenture or the Second Lien Notes with the consent of the
Holders of at least a majority in aggregate principal amount of the Second Lien Notes then
outstanding (including, without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Second Lien Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or compliance with any provision of this Indenture or the Second Lien
Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of
the then outstanding Second Lien Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Second Lien Notes).



          (b) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or its duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained prior to the date which
is 120 days after such record date, any such consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.



          (c) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amendment or supplement to this Indenture, and upon the
filing with the Second Lien Trustee of evidence satisfactory to the Second Lien Trustee of the
consent of the Holders of Second Lien Notes as aforesaid, and upon receipt by the Second Lien
Trustee of the documents described in Section 7.02(b) hereof, the Second Lien Trustee shall join
with the Company in the execution of such amendment or supplement unless such amendment or
supplement directly affects the Second Lien Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Second Lien Trustee may in its discretion, but shall not
be obligated to, enter into such amendment or supplement.



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



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          (e) After an amendment, supplement or waiver under this Section becomes effective, the Company
shall deliver to the Holders of Second Lien Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to deliver such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the then outstanding Second Lien Notes (including Additional Second
Lien Notes, if any) may waive compliance in a particular instance by the Company with any provision
of this Indenture or the Second Lien Notes.



          However, without the consent of each Holder affected, an amendment or waiver may not (with
respect to any Second Lien Notes held by a non-consenting Holder):




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




     (ii) reduce the principal of or change the fixed maturity of any Second Lien Note or
alter the provisions with respect to the redemption of the Second Lien Notes (other than the
provisions of Sections 4.10 and 4.14 hereof);




     (iii) reduce the rate of, or change the time for payment for, interest on any Second
Lien Note;




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




     (v) make any Second Lien Note payable in currency other than U.S. dollars;




     (vi) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Second Lien Notes to receive payments of principal of,
or interest or premium, if any, on the Second Lien Notes;




     (vii) waive a redemption payment with respect to any Second Lien Note (other than a
payment required by the provisions relating to repurchases of Second Lien Notes at the
option of Holders pursuant to Sections 4.10 and 4.14 hereof);




     (viii) release any Guarantor from any of its obligations under its Note Guarantee or
this Indenture, except in accordance with the terms of this Indenture;




     (ix) contractually subordinate in right of payment the Second Lien Notes or any Note
Guarantee to any other Indebtedness;




     (x) impair the right to institute suit for the enforcement of any payment on or with
respect to the Second Lien Notes or the Note Guarantees;



106









 






     (xi) amend, change or modify the obligation of the Company to make and consummate an
Asset Sale Offer with respect to any Asset Sale in accordance with Section 4.10 hereof after
the obligation to make such Asset Sale Offer has arisen, or the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change of Control in
accordance with the Section 4.14 hereof after such Change of Control has occurred,
including, in each case, amending, changing or modifying any definition relating thereto; or




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



          In addition, any amendment to, or waiver of, the provisions of this Indenture or any Security
Document that has the effect of (i) releasing all or substantially all of the Collateral from the
Liens securing the Second Lien Notes or (ii) making any changes to the priority of the Liens
created under the Security Documents that would adversely affect the Holders of the Second Lien
Notes will require the consent of the Holders of at least 662/3% in aggregate
principal amount of the Second Lien Notes then outstanding.


Section 9.03. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture or the Second Lien Notes shall be set forth in
a document 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
Second Lien Note is a continuing consent by the Holder of a Second Lien Note and every subsequent
Holder of a Second Lien Note or portion of a Second Lien Note that evidences the same debt as the
consenting Holder’s Second Lien Note, even if notation of the consent is not made on any Second
Lien Note. However, any such Holder of a Second Lien Note or subsequent Holder of a Second Lien
Note may revoke the consent as to its Second Lien Note if the Second Lien 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.


Section 9.05. Notation on or Exchange of Second Lien Notes.




          (a) The Second Lien Trustee may place an appropriate notation about an amendment, supplement
or waiver on any Second Lien Note thereafter authenticated. The Company in exchange for all Second
Lien Notes may issue and the Second Lien Trustee shall, upon receipt of an Authentication Order,
authenticate new Second Lien Notes that reflect the amendment, supplement or waiver.



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



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Section 9.06. Second Lien Trustee to Sign Amendments, Etc.




          The Second Lien Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Second Lien Trustee’s own rights, duties or immunities under this
Indenture or otherwise. The Company may not sign an amendment or supplemental Indenture or Second
Lien Note until its Board of Directors approves it. In executing any amendment or supplement or
Second Lien Note, the Second Lien Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such amendment or supplement is authorized or permitted by this
Indenture, and the Second Lien Trustee shall be entitled to receive (i) a copy of any Board
Resolution passed pursuant to this Section 9.06, and (ii) evidence of any consent of the Holders
provided in accordance with Section 9.02.



ARTICLE TEN

COLLATERAL AND SECURITY



Section 10.01. Equal and Ratable Sharing of Collateral by Holders of Junior Lien Debt.




          (a) Notwithstanding:




     (i) anything contained in the Collateral Trust Agreement or in any other Security
Documents;




     (ii) the time of incurrence of any Series of Junior Lien Debt;




     (iii) the order or method of attachment or perfection of any Liens securing any Series
of Junior Lien Debt;




     (iv) the time or order of filing or recording of financing statements or other
documents filed or recorded to perfect any Junior Lien upon any Collateral;




     (v) the time of taking possession or control over any Collateral;




     (vi) that any Junior Lien may not have been perfected or may be or have become
subordinated, by equitable subordination or otherwise, to any other Lien; or




     (vii) the rules for determining priority under any law governing relative priorities of
Liens,


     
all Junior Liens granted at any time by the Company or any Guarantor shall secure, equally and
ratably, all present and future 


Junior Lien Obligations.



          (b) Section 10.01(a) above is intended for the benefit of, and shall be enforceable as a third
party beneficiary by, each present and future holder of Junior Lien Obligations, each present and
future Junior Lien Representative and the Collateral Trustee as holder of Junior Liens.



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Section 10.02. Ranking of Junior Liens.




          (a) The Company shall, and shall cause each Restricted Subsidiary to, ensure that the Junior
Lien Documents, if any, provide that, notwithstanding:




     (i) anything to the contrary contained in the Security Documents;




     (ii) the time of incurrence of any Series of Priority Lien Debt;




     (iii) the order or method of attachment or perfection of any Liens securing any Series
of Priority Lien Debt;




     (iv) the time or order of filing or recording of financing statements or other
documents filed or recorded to perfect any Lien upon any Collateral;




     (v) the time of taking possession or control over any Collateral;




     (vi) that any Priority Lien may not have been perfected or may be or have become
subordinated, by equitable subordination or otherwise, to any other Lien; or




     (vii) the rules for determining priority under any law governing relative priorities of
Liens,

     
all Junior Liens at any time granted by the Company or any Guarantor shall be subject and
subordinate to all Priority Liens securing 


Priority Lien Obligations.



          (b) All Junior Lien Documents, if any, shall provide that the provisions described in
Section 10.02(a) above are intended for the benefit of, and will be enforceable as a third party
beneficiary by, each present and future holder of Priority Lien Obligations, each present and
future Priority Lien Representative and the Collateral Trustee as holder of Priority Liens.



          (c) Section 10.02(a) above is intended for the benefit of, and shall be enforceable as a third
party beneficiary by, each present and future holder of Priority Lien Obligations, each present and
future Priority Lien Representative and the Collateral Trustee as holder of Priority Liens.


Section 10.03. Relative Rights.




          The Company shall, and shall cause each Restricted Subsidiary to, ensure that nothing in any
Junior Lien Document will:




     (i) impair, as between the Company and the Holders of the First Lien Notes, the
obligation of the Company to pay principal, premium or Additional Interest, if any, and
interest on the First Lien Notes in accordance with their terms or any other obligation of
the Company or any guarantor under the First Lien Notes Indenture;



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     (ii) affect the relative rights of Holders of First Lien Notes as against any other
creditors of the Company or any Guarantor (other than holders of Junior Liens or other
Priority Liens);




     (iii) restrict the right of any holder of First Lien Notes to sue for payments that are
then due and owing (but not enforce any judgment in respect thereof against any Collateral
to the extent specifically prohibited by provisions of the Collateral Trust Agreement);




     (iv) restrict or prevent any holder of First Lien Notes or holder of other Priority
Lien Obligations, the Collateral Trustee or any other Person from exercising any of its
rights or remedies upon a Default or Event of Default not specifically restricted or
prohibited by the provisions of the Collateral Trust Agreement; or




     (v) restrict or prevent any holder of First Lien Notes or holder of other Priority Lien
Obligations, the First Lien Trustee, the Collateral Trustee or any other
Person from taking any lawful action in an insolvency or liquidation proceeding not
specifically restricted or prohibited by the provisions of the Collateral Trust Agreement.


Section 10.04. Security Documents.




          The due and punctual payment of the principal of, premium on, if any, and interest (including
any Additional Interest) on, the Second Lien Notes when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or
otherwise, and interest on the overdue principal of, premium on, if any, and interest (to the
extent permitted by law), on the Second Lien Notes and performance of all other Obligations of the
Company and the Guarantors to the Holders of Second Lien Notes or the Second Lien Trustee under
this Indenture and the Second Lien Notes (including, without limitation, the Note Guarantees),
according to the terms hereunder or thereunder, are secured by second priority Liens and security
interest, in each case subject to Permitted Liens, as provided in the Security Agreement and the
Collateral Trust Agreement, which the Company and the Guarantors have entered into prior to or
simultaneously with the execution of this Indenture and which are attached hereto as Exhibits F and
G, respectively and will be secured by all Security Documents hereafter delivered as required or
permitted by this Indenture and the Security Documents. Each Holder of Second Lien Notes, by its
acceptance thereof, consents and agrees to the terms of the Security Agreement and Collateral Trust
Agreement (including, without limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to time in accordance with
their terms and authorizes and directs the Collateral Trustee and/or the Second Lien Trustee (as
the case may be) to enter into the joinder to the Security Agreement, the Collateral Trust
Agreement and any other Security Document and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company and the Guarantors will deliver to the Second Lien
Trustee copies of all documents delivered to the Collateral Trustee pursuant to the Security
Agreement and Collateral Trust Agreement, and will do or cause to be done all such acts and things
as may be necessary or proper, or as may be required by the provisions of the Security Agreement or
the Collateral Trust Agreement, to assure and confirm to the Second Lien Trustee and the Collateral
Trustee the second lien security interest in the Collateral contemplated hereby, by the Security



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Agreement or any part thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Second Lien Notes secured hereby,
according to the intent and purposes herein expressed. Subject to the terms of the Security
Agreement and the Collateral Trust Agreement, the Company will take, and will cause its
Subsidiaries to take, upon request of the Second Lien Trustee, any and all actions reasonably
required to cause the Security Agreement to create and maintain, as security for the Obligations of
the Company and the Guarantors hereunder, a valid and enforceable perfected second priority Lien in
and on all the Collateral, in favor of the Collateral Trustee for the benefit of the Holders of
Second Lien Notes and future permitted Junior Lien Obligations junior to the Priority Lien
Obligations and, superior to and prior to the rights of all third Persons and subject to no other
Liens other than Permitted Liens.


Section 10.05. Recording and Opinions.




          The Company shall comply with the provisions of TIA §314(b) (including, without limitation,
the provision of an initial and annual Opinion of Counsel under TIA §314(b)); provided that the
Company shall not be required to comply with TIA §314(b)(i) until this Indenture is qualified
pursuant to the TIA. Following such qualification, to the extent the Company is required to
furnish to the Second Lien Trustee an Opinion of Counsel pursuant to TIA §314(b)(2), the Company
shall furnish such opinion not more than 60 but not less than 30 days prior to each December 31.


Section 10.06. Release of Collateral.




          (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Second Lien
Notes and Note Guarantees outstanding under this Indenture or any other Obligations under this
Indenture, and the right of the Holders of the Second Lien Notes and such Obligations to the
benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will terminate and be
discharged:




     (i) upon satisfaction and discharge of this Indenture in accordance with the provisions
set forth in Article Twelve hereof;




     (ii) upon a Legal Defeasance or Covenant Defeasance of the Second Lien Notes in
accordance with the provisions set forth in Article Eight hereof;




     (iii) upon payment in full of the Second Lien Notes and all other Note Obligations that
are outstanding, due and payable at the time the Second Lien Notes are paid in full;




     (iv) in whole or in part, with the consent of the Holders of the requisite percentage
of Second Lien Notes in accordance with the provisions set forth in Article Nine hereof, and
upon delivery of instructions and any other documentation, in each case as required by this
Indenture and the Security Documents, in a form satisfactory to the Collateral Trustee;



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     (v) as to the Capital Stock of any Restricted Subsidiary, if the Company designates
that Restricted Subsidiary as an Unrestricted Subsidiary in accordance with the applicable
provisions of this Indenture; or




     (vi) as to the Capital Stock of any Subsidiary, if securing the Second Lien Notes with
the Capital Stock of such Subsidiary as provided by the Security Documents would give rise
to an obligation of the Company to prepare audited financial statements of such Subsidiary
in order to comply with Regulation S-X, but only if such obligation did not arise as a
result of the transfer of assets to such Subsidiary, the transfer of assets
to another Subsidiary or any recapitalization of any Subsidiary by the Company or any
of its Subsidiaries.



          (b) To the extent applicable, the Company will cause TIA §313(b), relating to reports, and TIA
§314(d), relating to the release of property or securities or relating to the substitution
therefore of any property or securities to be subjected to the Lien created by the Security
Documents, to be complied with. Any certificate or opinion required by TIA §314(d) may be made by
an Officer of the Company except in cases where TIA §314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent engineer, appraiser
or other expert reasonably satisfactory to the Second Lien Trustee. Notwithstanding anything to
the contrary in this Section 10.06(b), the Company shall not be required to comply with all or any
portion of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the
terms of TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the SEC and
its staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is
inapplicable to released Collateral.



          (c) To the extent applicable, the Company shall furnish to the Second Lien Trustee and the
Collateral Trustee, prior to each proposed release of Collateral pursuant to the Security
Documents:




     (i) all documents required by TIA §314(d); and




     (ii) an Opinion of Counsel to the effect that such accompanying documents constitute
all documents required by TIA §314(d).


Section 10.07. [RESERVED].



Section 10.08. Disposition of Collateral Without Release.




          (a) Notwithstanding Sections 10.06 hereof relating to releases of Collateral or the provisions
of the Collateral Trust Agreement relating to the release of the Collateral, but subject to the
other provisions of this Indenture, the Company and the Guarantors may, among other things, without
any release or consent by the Collateral Trustee or the Second Lien Trustee, conduct ordinary
course activities with respect to the Collateral, which do not individually or in the aggregate
materially adversely affect the value of the Collateral.



          (b) The Company shall deliver to the Second Lien Trustee and to the Collateral Trustee, within
60 calendar days following the end of each six month period ending on March 31 or September 30 of
any year, an Officers’ Certificate to the effect that all releases and



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withdrawals during the
preceding six-month period in which no release or consent of the Second Lien Trustee or Collateral
Trustee was obtained were in the ordinary course of the Company’s and the Guarantors’ business and
that the net proceeds thereof, if any, were used as permitted by this Indenture and the Security
Documents.


Section 10.09. Authorization of Actions to Be Taken by the Second Lien Trustee Under the
Security Documents.




          (a) Subject to the provisions of the Security Documents, the Second Lien Trustee may (but
without any obligation to do so), in its sole discretion and without the consent of the Holders of
Second Lien Notes, direct, on behalf of the Holders of Second Lien Notes, the Collateral Trustee
to, take all actions it deems necessary or appropriate in order to:




     (i) enforce any of the terms of the Security Agreement; and




     (ii) collect and receive any and all amounts payable in respect of the Obligations of
the Company hereunder.



          (b) Subject to the Collateral Trust Agreement, the Second Lien Trustee will have power (but
without any obligation) to direct, on behalf of the Holders of the Second Lien Notes, the
Collateral Trustee to institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the
Security Agreement or this Indenture, and such suits and proceedings as the Second Lien Trustee may
deem expedient to preserve or protect its interests and the interests of the Holders of Second Lien
Notes in the Collateral (including power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be prejudicial to the
interests of the Holders of Second Lien Notes or of the Second Lien Trustee).


Section 10.10. Authorization of Receipt of Funds by the Second Lien Trustee under the Security
Agreement.




          The Second Lien Trustee is authorized to receive any funds for the benefit of the Holders of
Second Lien Notes distributed under the Security Agreement and the Collateral Trust Agreement, and
to make further distributions of such funds to the Holders of Second Lien Notes according to the
provisions of this Indenture.


Section 10.11. Lien Sharing and Priority Confirmation.




          The Second Lien Trustee agrees for itself and on behalf of the Holders of the Second Lien
Notes, and by holding Second Lien Notes each such Holder shall be deemed to agree:



          (a) for the enforceable benefit of all holders of each existing and future Series of Junior
Lien Debt and Series of Priority Lien Debt and each existing and future Junior Lien
Representative and Priority Lien Representative, that all Junior Lien Obligations will be and
are



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secured equally and ratably by all Junior Liens at any time granted by the Company or any
Guarantor to secure any Obligations in respect of the Indenture, the Second Lien Notes and the Note
Guarantees, and that all such Junior Liens will be enforceable by the Collateral Trustee for the
benefit of all holders of Junior Lien Obligations equally and ratably;



          (b) for the enforceable benefit of all holders of each existing and future Series of Priority
Lien Debt and Series of Junior Lien Debt, and each existing and future Priority Lien Representative
and Junior Lien Representative, that the holders of Obligations in respect of the Indenture, the
Second Lien Notes and the Note Guarantees are bound by the provisions of the Collateral Trust
Agreement, including the provisions relating to the ranking of Junior Liens and the order of
application of proceeds from enforcement of Junior Liens;



          (c) to consent to and direct the Collateral Trustee to perform its obligations under the
Collateral Trust Agreement and the other Security Documents in respect of the Indenture, the Second
Lien Notes and the Note Guarantees.


Section 10.12. Voting.




          In connection with any matter under the Collateral Trust Agreement requiring a vote of holders
of Secured Debt Obligations, the Holders shall cast their votes in accordance with this Indenture.
The amount of the Second Lien Notes to be voted by the Holders will equal the aggregate outstanding
principal amount of the Second Lien Notes. Following and in accordance with the outcome of the
applicable vote under this Indenture, the Second Lien Trustee shall vote the total amount of the
Second Lien Notes as a block in respect of any vote under the Collateral Trust Agreement.


Section 10.13. [RESERVED].



Section 10.14. Limitation on Duty of Second Lien Trustee in Respect of Collateral;
Indemnification.




          (a) Beyond the exercise of reasonable care in the custody thereof, the Second Lien Trustee
shall have no duty as to any Collateral in its possession or control or in the possession or
control of any agent or bailee or any income thereon or as to preservation of rights against prior
parties or any other rights pertaining thereto and the Second Lien Trustee shall not be responsible
for filing any financing or continuation statements or recording any documents or instruments in
any public office at any time or times or otherwise perfecting or maintaining the perfection of any
security interest in the Collateral. The Second Lien Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and shall not be liable or
responsible for any loss or diminution in the value of any of the Collateral, by reason
of the act or omission of any carrier, forwarding agency or other agent or bailee selected by
the Second Lien Trustee in good faith.



          (b) The Second Lien Trustee shall not be responsible for the existence, genuineness or value
of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens
in any of the Collateral, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder, except to the extent such action or



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omission constitutes
gross negligence, bad faith or willful misconduct on the part of the Second Lien Trustee, for the
validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the
validity of the title of the Company to the Collateral, for insuring the Collateral or for the
payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral. The Second Lien Trustee shall have no duty to ascertain or inquire
as to the performance or observance of any of the terms of this Indenture, the Collateral Trust
Agreement or the Security Documents by the Company, the Guarantors, the Secured Debt
Representatives or the Collateral Trustee.


Section 10.15. Collateral Trustee a Third Party Beneficiary.




          (b) This Section 10 is intended for the benefit of, and shall be enforceable as a third party
beneficiary by, the Collateral Trustee as holder of Junior Liens.



ARTICLE ELEVEN

NOTE GUARANTEES



Section 11.01. Guarantee.




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



          (b) The Guarantors hereby agree that, to the maximum extent permitted under applicable law,
their obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Second Lien Notes or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Second Lien Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Subject to Section 6.06 hereof, each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against



115









 







the Company, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Second Lien Notes and this
Indenture.



          (c) If any Holder or the Second Lien Trustee is required by any court or otherwise to return
to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to any of the Company or the Guarantors, any amount paid by any of them to the
Second Lien Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.



          (d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Second Lien Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such obligations as provided in Article Six hereof, such
obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.


Section 11.02. Limitation on Guarantor Liability.




          Each Guarantor, and by its acceptance of Second Lien Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to such Note Guarantee. To effectuate the foregoing intention, the Second Lien Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor
shall be limited to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other
Guarantor under this Article Eleven, result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer or conveyance.


Section 11.03. Execution and Delivery of Note Guarantee.




          (a) To evidence its Note Guarantee set forth in Section 11.01 hereof, each Guarantor hereby
agrees that this Indenture shall be executed on behalf of such Guarantor by its President, its
Chief Financial Officer, one of its Senior Vice Presidents, one of its Vice Presidents or one of
its Assistant Vice Presidents.




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          (b) Each Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01 shall
remain in full force and effect notwithstanding the absence of the endorsement of any notation of
such Note Guarantee on the Second Lien Notes.



          (c) If an Officer whose signature is on this Indenture or on the Note Guarantee no longer
holds that office at the time the Second Lien Trustee authenticates the Second Lien Note, the Note
Guarantee shall be valid nevertheless.



          (d) The delivery of any Second Lien Note by the Second Lien Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.



          (e) If required by Section 4.18 hereof, the Company shall cause such Subsidiaries to execute
supplemental indentures to this Indenture and Note Guarantees in accordance with Section 4.18
hereof and this Article Eleven, to the extent applicable.



Section 11.04. Guarantors May Consolidate, Etc., on Certain Terms.




          (a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets
to, or consolidate or merge with or into (whether or not such Guarantor is the surviving Person),
another Person, other than the Company or another Guarantor, unless:




     (i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and




     (ii) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger assumes all the
obligations of that Guarantor under this Indenture and its Guarantee pursuant to a
supplemental indenture reasonably satisfactory to the Second Lien Trustee; or




     (B) the Net Proceeds of such sale or other disposition are applied in
accordance with the provisions of Section 4.10 hereof.



          (b) In case of any such consolidation, merger, sale or conveyance governed by
Section 11.04(a)(ii)(A), upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Second Lien Trustee and satisfactory in form to the Second Lien
Trustee, of the Note Guarantee endorsed upon the Second Lien Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by a
Guarantor, such successor Person shall succeed to and be substituted for a 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 Note Guarantees to be endorsed upon all of the Second Lien Notes
issuable hereunder which theretofore shall not have been signed by the Company and delivered to the
Second Lien Trustee. All the Note Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note Guarantees had been issued
at the date of the execution hereof.



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Section 11.05. Release of a Guarantor.




          (a) The Note Guarantee of a Guarantor (and the security interest in the Collateral owned by
such Guarantor) will be released:




     (i) in connection with any sale, disposition, exchange or other transfer (including
through merger, consolidation, amalgamation or otherwise) of the Capital Stock of a
Guarantor following which such Guarantor is no longer a Restricted Subsidiary of the
Company, if the sale, disposition, exchange or other transfer complies with the provisions
of Section 4.10 hereof;




     (ii) if the Company designates that Guarantor as an Unrestricted Subsidiary in
accordance with the applicable provisions of Section 4.16 hereof;




     (iii) upon the release or discharge of the guarantee which resulted in the creation of
its Note Guarantee pursuant to the provisions of Section 4.18 hereof; except a discharge or
release by or as a result of a payment under such guarantee; or




     (iv) upon the exercise of the Company of its Legal Defeasance or Covenant Defeasance
option as set forth in Article Eight hereof.



          (b) Upon delivery by the Company to the Second Lien Trustee of an Officers’ Certificate and an
Opinion of Counsel to the effect that one of the foregoing requirements has been satisfied and the
conditions to the release of a Guarantor under this Section 11.05 have been met, the Second Lien
Trustee shall execute any documents reasonably required in order to evidence the release of such
Guarantor from its obligations under its Note Guarantee.



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



ARTICLE TWELVE

SATISFACTION AND DISCHARGE




Section 12.01. Satisfaction and Discharge.




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




     (i) either:




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



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     (B) all Second Lien Notes that have not been delivered to the Second Lien
Trustee for cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or shall become due and payable within one year
and the Company or any Guarantor has irrevocably deposited or caused to be deposited
with the Second Lien Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as shall be sufficient (without consideration of any
reinvestment of interest) to pay and discharge the principal, premium and Additional
Interest, if any, and accrued interest to the date of maturity or redemption;




     (C) no Default or Event of Default has occurred and is continuing on the date
of the deposit referred to in Section 12.01(a)(i)(B) or shall occur as a result of
the deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) and the deposit shall not result in a breach
or violation of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is
bound;




     (ii) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and




     (iii) the Company has delivered irrevocable instructions to the Second Lien Trustee
under this Indenture to apply the deposited money toward the payment of the Second Lien
Notes at maturity or the redemption date, as the case may be.



          (b) In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel
to the Second Lien Trustee stating that all conditions precedent to satisfaction and discharge have
been satisfied.



          (c) Notwithstanding the satisfaction and discharge of this Indenture, if money has been
deposited with the Second Lien Trustee pursuant to subclause (B) of Section 12.01(a)(i), the
provisions of Section 12.02 and Section 8.06 shall survive. In addition, nothing in this Section
12.01 shall be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms,
survive the satisfaction and discharge of this Indenture.



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




          All money and non-callable Government Securities (including the proceeds thereof) deposited
with the Second Lien Trustee pursuant to Section 12.01 hereof in respect of the outstanding Second
Lien Notes shall be held in trust and applied by the Second Lien Trustee, in accordance with the
provisions of such Second Lien Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Second Lien Trustee may
determine, to the Holders of such Second Lien Notes of all sums due and to become due thereon in
respect of principal, premium and Additional Interest, if any,



119









 





and interest, but such money need
not be segregated from other funds except to the extent required by law.



          If the Second Lien Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable
Government Securities in accordance with Section 12.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s and any Guarantor’s obligations under
this Indenture and the Second Lien Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 12.01; provided that if the Company has made any payment of principal
of, premium or Additional Interest, if any, or interest on any Second Lien Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Second Lien Notes to receive such payment from the money or Government Securities held by the
Second Lien Trustee or Paying Agent.



ARTICLE THIRTEEN

MISCELLANEOUS




Section 13.01. Trust Indenture Act Controls.




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



Section 13.02. Notices.




          (a) Any notice or communication by the Company or any Guarantor, on the one hand, or the
Second Lien Trustee on the other hand, to the other is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt requested), facsimile
or overnight air courier guaranteeing next day delivery, to the others’ address:




If to the Company or any Guarantor:




Terremark Worldwide, Inc.

One Biscayne Tower

2 South Biscayne Boulevard, Suite 2800

Miami, FL 33131

Facsimile: 305-250-4244

Attention: Chief Legal Officer




With copies to:




Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, FL 33131

Facsimile: 305-961-5676

Attention: Jaret L. Davis, Esq.



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If to the Second Lien Trustee:




The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway North

2nd Floor

Jacksonville, Florida 32256

Attention: Craig Kaye



          (b) The Company, the Guarantors or the Second Lien Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or communications.



          (c) All notices and communications to the First Lien Trustee shall be deemed to have been duly
given to the Second Lien Trustee; provided that the First Lien Trustee and the Second Lien Trustee
are the same Person.



          (d) All notices and communications (other than those sent to Holders) shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if faxed; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.



          (e) Any notice or communication to a Holder shall be delivered by first class mail, certified
or registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the Registrar. Any notice or
communication shall also be so delivered to any Person described in TIA § 313(c), to the extent
required by the TIA. Failure to deliver a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.



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



          (g) If the Company delivers a notice or communication to Holders, it shall deliver a copy to
the Second Lien Trustee and each Agent at the same time.



Section 13.03. Communication by Holders of Second Lien Notes with Other Holders of Second Lien
Notes.




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



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Section 13.04. Certificate and Opinion as to Conditions Precedent.




          (a) Upon any request or application by the Company to the Second Lien Trustee to take any
action under this Indenture, the Company shall furnish to the Second Lien Trustee:




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




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



Section 13.05. Statements Required in Certificate or Opinion.




          (a) Each certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4))
shall comply with the provisions of TIA § 314(e) and shall include:




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




     (ii) 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;




     (iii) 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




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



Section 13.06. Rules by Second Lien Trustee and Agents.




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



Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.




          No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Second Lien Notes, this Indenture, the Note



122









 




Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
Second Lien Notes by accepting a Second Lien Note waives and releases all such liability. This
waiver and release are part of the consideration for issuance of the Second Lien Notes. The waiver
may not be effective to waive liabilities under the U.S. federal securities laws.




Section 13.08. Governing Law.




          THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
NOTES AND THE NOTE GUARANTEES.



Section 13.09. Waiver of Jury Trial.




          EACH OF THE COMPANY, THE GUARANTORS AND THE SECOND LIEN 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 NOTE GUARANTEES.



Section 13.10. Consent to Jurisdiction.




          Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of the State of New York
in each case located in the Borough of Manhattan in the City of New York (collectively, the
“Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document
by mail (to the extent allowed under any applicable statute or rule of court) to such party’s
address set forth above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any such court has
been brought in an inconvenient forum.



Section 13.11. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or any of its Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.



Section 13.12. Successors.




          All agreements of the Company in this Indenture and the Second Lien Notes shall bind its
successors. All agreements of the Second Lien Trustee in this Indenture shall bind its successors.
All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise
provided in Section 11.04. The provisions of this Indenture hereof referring to the Collateral
Trustee shall inure to the benefit of the Collateral Trustee.



123









 





Section 13.13. Severability.




          In case any provision in this Indenture or the Second Lien 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 13.14. Counterpart Originals.




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



Section 13.15. Acts of Holders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Second Lien Trustee
and, where it is hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Second Lien Trustee and the Company if made in the manner provided in
this Section 13.15.



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



          (c) Notwithstanding anything to the contrary contained in this Section 13.15, the principal
amount and serial numbers of Second Lien Notes held by any Holder, and the date of holding the
same, shall be proved by the register of the Second Lien Notes maintained by the Registrar as
provided in Section 2.04 hereof.



          (d) If the Company shall solicit from the Holders of the Second Lien Notes any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, by or pursuant to a resolution of its Board of Directors, fix in advance a record date for
the determination of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA § 316(c), such record date shall be the record date specified in or
pursuant to such resolution, which shall be the later of the date 30 days prior to the first
solicitation of Holders generally in connection therewith or the date of the most recent list of



124









 




Holders forwarded to the Second Lien Trustee prior to such solicitation pursuant to Section 2.06
hereof and not later than the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of the then outstanding Second Lien Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the then outstanding Second Lien Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.




          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Second Lien Note shall bind every future Holder of the same Second Lien Note and the
Holder of every Second Lien Note issued upon the registration or transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the
Second Lien Trustee or the Company in reliance thereon, whether or not notation of such action is
made upon such Second Lien Note.



          (f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Second Lien Note may do so itself with regard to all or any part of
the principal amount of such Second Lien Note or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of such principal amount.



Section 13.16. Table of Contents, Headings, Etc.




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



Section 13.17. USA Patriot Act.




          The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act,
the Second Lien Trustee and Agents, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, are required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account.
The parties to this agreement agree that they will provide the Second Lien Trustee and the Agents
with such information as they may request in order to satisfy the requirements of the USA Patriot
Act.



Section 13.18. Force Majeure.




          In no event shall the Second Lien 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



125









 




or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Second Lien 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.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




126









 






SIGNATURES




	 	 	 	 	 	 	 

	 	 	TERREMARK WORLDWIDE, INC.


TERREMARK NORTH AMERICA, INC.


TERREMARK EUROPE, INC.


TERRENAP DATA CENTERS, INC.


PARK WEST TELECOMMUNICATIONS INVESTORS, INC.


TECOTA SERVICES CORP.


TECHNOLOGY CENTER OF THE AMERICAS, LLC


TERREMARK FINANCIAL SERVICES, INC.


TERREMARK FORTUNE HOUSE #1, INC.


TERREMARK LATIN AMERICA, INC.


TERREMARK MANAGEMENT SERVICES, INC.


TERREMARK REALTY, INC.


TERREMARK TECHNOLOGY CONTRACTORS, INC.


TERREMARK TRADEMARK HOLDINGS, INC.


TERRENAP SERVICES, INC.


SPECTRUM TELECOMMUNICATIONS CORP.


NAP OF THE CAPITAL REGION, LLC

	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jose A. Segrera	 	 
	 

	 	 	 	 	 	 
	 

	 	
	 	Name: 
Jose A. Segrera	 	 
	 

	 	
	 	Title: Chief Financial Officer	 	 






Signature Page to Second Lien Indenture




 









 





	 	 	 	 	 	 	 

	 	 	NAP OF THE CAPITAL REGION II, LLC


NAP WEST, LLC


NAP WEST II LLC


TERREMARK PERU LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jose A. Segrera	 	 
	 

	 	 	 	 	 	 
	 

	 	
	 	Name: Jose A. Segrera	 	 
	 

	 	
	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	TERREMARK DATAVAULTING LLC	 	 
	 
	 	 	 	 	 	 
	 	 	By its sole member:	 	 
	 	 	Terremark North America, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jose A. Segrera	 	 
	 

	 	 	 	 	 	 
	 

	 	
	 	Name: Jose A. Segrera	 	 
	 

	 	
	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	TERREMARK FEDERAL GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Nelson Fonseca	 	 
	 

	 	 	 	 	 	 
	 

	 	
	 	Name: Nelson Fonseca	 	 
	 

	 	
	 	Title: Chief Financial Officer	 	 






Signature Page to Second Lien Indenture




 









 





	 	 	 	 	 	 	 

	 	 	The Bank of New York Mellon Trust Company, N.A.

     as Second Lien Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Craig A. Kaye	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Craig A. Kaye	 	 
	 

	 	 	 	Title: Vice President	 	 





Signature Page to Second Lien Indenture



 









 





EXHIBIT A




[Face of Note]



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



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



          [Insert the Regulation S Legend, if applicable, pursuant to the provisions of the Indenture]



          [Insert the OID Legend, if applicable, pursuant to the provisions of the Indenture]



A-1









 






CUSIP [     ]




ISIN [          ]




[RULE 144A][REGULATION S][IAI] GLOBAL NOTE

9.500% Senior Secured Second Lien Notes due 2013




			
	 	 	 
	No. ___
	 	[$                    ]






TERREMARK WORLDWIDE, INC.



promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto] [of                                          United
States Dollars] on November 15, 2013.



Interest Payment Dates: May 15 and November 15



Record Dates: May 1 and November 1




          Reference is hereby made to the further provisions of this Second Lien Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect as if set
forth at this place.



A-2









 





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



	 	 	 	 	 	 	 

	 	 	TERREMARK WORLDWIDE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 		 	Name: 	 	 
	 

	 		 	Title: 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 		 	Name: 	 	 
	 

	 		 	Title: 	 	 





(Second Lien Trustee’s Certificate of Authentication)



This is one of the 9.500% Senior Secured Second Lien Notes due 2013 described in the
within-mentioned Indenture.



Dated:




	 	 	 	 	 

	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.  
	 
	 	 	 	 
	as Second Lien Trustee
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






A-3









 





[Reverse Side of Note]




TERREMARK WORLDWIDE, INC.



9.500% Senior Secured Second Lien Notes due 2013



          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



     1. Interest. The Company promises to pay interest on the principal amount of this Second Lien
Note at 9.500% per annum from the date hereof until maturity and shall pay the Additional Interest,
if any, payable pursuant to Section 6 of the Registration Rights Agreement referred to below. The
Company shall pay interest and Additional Interest, if any, semi-annually in arrears on May 15 and
November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an “Interest Payment Date”). Interest on the Second Lien Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default in the payment of interest, and if
this Second Lien Note is authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be May 15, 2011. The
Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, at the interest rate on the Second Lien Notes; it
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.



     2. Method of Payment. The Company shall pay interest on the Second Lien Notes (except
defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of
Second Lien Notes at the close of business on the record date immediately preceding the Interest
Payment Date, even if such Second Lien Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.13 of the Indenture with respect to
defaulted interest. The Second Lien Notes shall be payable as to principal, premium and Additional
Interest, if any, and interest at the office or agency of the Company maintained for such purpose
or, at the option of the Company, payment of interest and Additional Interest, if any, may be made
by check mailed to the Holders at their addresses set forth in the register of Holders, and
provided that payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest, premium and Additional Interest, if any, on, all Global Notes
and to any Holder of Second Lien Notes which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and private debts. If a
payment date is a date other than a Business Day at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.



     3. Paying Agent and Registrar. Initially, the Second Lien Trustee under the Indenture shall
act as Paying Agent and Registrar. The Company may change any Paying Agent or



A-4









 




Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any
such capacity.




     4. Indenture. The Company issued the Second Lien Notes under an Indenture dated as of
November 16, 2010 (“Indenture”) among the Company, the Guarantors and the Second Lien Trustee. The
terms of the Second Lien Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended. The Second Lien Notes are
subject to all such terms, and Holders are referred to the Indenture and such Act for a statement
of such terms. To the extent any provision of this Second Lien Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The
Indenture pursuant to which this Second Lien Note is issued provides that an unlimited aggregate
principal amount of Additional Second Lien Notes may be issued thereunder.



          5. Optional Redemption. The Company may redeem all or a part of the Second Lien Notes on any
one or more occasions, at the redemption prices (expressed as percentages of principal amount of
the Second Lien Notes to be redeemed) set forth below plus accrued and unpaid interest (and
Additional Interest, if any) on the Second Lien Notes redeemed, to the applicable redemption date
(subject to the rights of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date), if redeemed during:



	 	 	 	 	 
	Year	 	Percentage
	Issue Date through and including May 15, 2011
	 	 	104.000	%
	May 16, 2011 through and including May 15, 2012
	 	 	102.000	%
	May 16, 2012 and thereafter
	 	 	100.000	%






          6. Repurchase at Option of Holder. (a) If a Change of Control occurs, each Holder of the
Second Lien Notes shall have the right to require the Issuer to repurchase all or any part (equal
to $2,000 or in integral multiples of $1,000 in excess thereof) of that Holder’s Second Lien Notes
(the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to not
less than 101.000% of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of repurchase, subject to the right of Holders of the Second Lien Notes of record
on the relevant Record Date to receive interest due on the relevant Interest Payment Date (the
“Change of Control Payment Date,” which date will be no earlier than the date of such Change of
Control). The Change of Control Offer shall be made in accordance with Section 4.14 of the
Indenture.



          (b) In accordance with Section 4.10 of the Indenture, the Issuer will be required to offer to
purchase the Second Lien Notes upon certain asset sales.



     7. Denominations, Transfer, Exchange. The Second Lien Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of Second Lien Notes may be registered and Second Lien Notes may be exchanged as provided
in the Indenture. The Registrar and the Second Lien Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company is not
required to transfer or exchange any Second Lien Note selected



A-5









 




for redemption. Also, the Company is not required to transfer or exchange any Second Lien
Note for a period of 15 days before a selection of Second Lien Notes to be redeemed. Transfer may
be restricted as provided in the Indenture.




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



     9. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Second Lien Notes may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Second Lien Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Second Lien Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any
existing Default or Event of Default or compliance with any provision of the Indenture or the
Second Lien Notes may be waived with the consent of the Holders of a majority in aggregate
principal amount of the then outstanding Second Lien Notes (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, Second Lien
Notes). Without the consent of any Holder of a Second Lien Note, the Indenture or the Second Lien
Notes may be amended or supplemented to, among other things, cure any ambiguity, defect or
inconsistency, or to make any change that does not adversely affect the legal rights under the
Indenture of any such Holder.



     10. Defaults and Remedies. In the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, any of its Significant Subsidiaries or any of
its Restricted Subsidiaries that together constitute a Significant Subsidiary, all outstanding
Second Lien Notes shall become due and payable immediately without further action or notice. If
any other Event of Default occurs and is continuing, the Second Lien Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Second Lien Notes may declare all
the Second Lien Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default. Holders of the Second Lien Notes may not enforce the Indenture or
the Second Lien Notes except as provided in the Indenture and the Security Documents. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the then outstanding
Second Lien Notes may direct the Second Lien Trustee in its exercise of any trust or power. The
Second Lien Trustee may withhold from Holders of the Second Lien Notes notice of any Default or
Event of Default (except a Default or Event of Default relating to the payment of principal,
premium, if any, interest or Additional Interest, if any) if it determines that withholding notice
is in their interest. Holders of a majority in aggregate principal amount of the Second Lien Notes
then outstanding by notice to the Second Lien Trustee may, on behalf of the Holders of all of the
Second Lien Notes, rescind and annul a declaration of acceleration pursuant to Section 6.02 of the
Indenture, and its consequences, and waive any related existing Default or Event of Default (except
a continuing Default or Event of Default in the payment of interest or Additional Interest, if any,
premium, if any, or on the principal of the Second Lien Notes) if certain conditions are satisfied.



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



A-6









 





     12. No Recourse Against Others. No director, officer, employee, incorporator, stockholder,
member, manager or partner of the Company or any Guarantor, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Second Lien Notes, the Indenture, the
Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Second Lien Notes by accepting a Second Lien Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Second Lien Notes. The waiver may not be effective to waive liabilities under the federal
securities laws.



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



     14. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration
Rights Agreement dated as of November 16, 2010, between the Company, the Guarantors and the parties
named on the signature pages thereof or, in the case of Additional Second Lien Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes shall have the rights set forth in one or
more registration rights agreements, if any, between the Company, the Guarantors and the other
parties thereto, relating to rights given by the Company and the Guarantors to the purchasers of
Additional Second Lien Notes (the “Registration Rights Agreement”).



     15. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Second Lien Notes and the Second Lien Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either as
printed on the Second Lien Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.



     16. Guarantee. The Company’s obligations under the Second Lien Notes are fully and
unconditionally guaranteed, jointly and severally, by the Guarantors.



     17. Collateral. The obligations of the Company and the Guarantors under the Indenture, the
Second Lien Notes and the Note Guarantees are secured by a Lien on the Collateral pursuant to the
Security Documents.



     18. Copies of Documents. The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be
made to:




Terremark Worldwide, Inc.

One Biscayne Tower

2 South Biscayne Blvd., Suite 2800

Miami, FL 33131

Attn: Chief Legal Officer



A-7









 





Assignment Form




          To assign this Second Lien Note, fill in the form below:



	 	 	 

	(I) or (we) assign and transfer this Second Lien Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)





 



(Insert assignee’s soc. sec. or tax I.D. no.)



 



 



 



 



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




	 	 	 

	and irrevocably appoint
	 	 
	 

	 	 




to transfer this Second Lien Note on the books of the Company. The agent may substitute another to
act for him.




Date:                     




	 	 	 	 	 

	 

	 	Your Signature:	 	 
	 

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






Signature Guarantee*:                     






 




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





A-8









 




OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Second Lien Note purchased by the Company pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box below:



	 	 	 

	o Section 4.10

	 	o Section 4.14






          If you want to elect to have only part of the Second Lien Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have
purchased:



$                    




Date:                     




	 	 	 	 	 	 	 

	 

	 	Your Signature:
	 	 	 	 
	 

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






	 	 	 	 	 	 	 

	 

	 	Tax Identification No.:
	 	 	 	 
	 

	 	 	 	 	 	 





Signature Guarantee*:                     






 




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





A-9









 





SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



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





A-10









 





EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER



Terremark Worldwide, Inc.

One Biscayne Tower

2 South Biscayne Blvd., Suite 2800

Miami, FL 33131

Attn: Chief Legal Officer




The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway North

2nd Floor

Jacksonville, Florida 32256

Attn: Craig Kaye




          Re: 9.500% Senior Secured Second Lien Notes due 2013



          Reference is hereby made to the Indenture, dated as of November 16, 2010 (the “Indenture”),
among Terremark Worldwide, Inc., a Delaware corporation (the “Company”), the Guarantors, and The
Bank of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to them in the Indenture.



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



[CHECK ALL THAT APPLY]




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



B-1









 





     o 2. Check if Transferee will take delivery of a beneficial interest in a Legended
Regulation S Global Note, or a Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Distribution Compliance Period, the transfer is not being made to a U.S. Person or for the account
or benefit of a U.S. Person (other than an Initial Purchaser) and the interest transferred will be
held immediately thereafter through Euroclear or Clearstream. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Legended Regulation S Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.



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



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



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



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



     o (d) such Transfer is being effected to an Institutional Accredited Investor in a minimum
principal amount of $250,000 and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor



B-2









 




has attached to this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.




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



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



     o (b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and, in the case of a transfer from a Restricted Global Note
or a Restricted Definitive Note, the Transferor hereby further certifies that (a) the Transfer is
not being made to a person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (b) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (c) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (d) the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person, and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.



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



B-3









 




with the Securities Act. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.




B-4









 





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



	 	 	 	 	 	 	 	 	 

	 

	 	Dated:
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






B-5









 





ANNEX A TO CERTIFICATE OF TRANSFER




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




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




	 	 	 	 	 	 	 

	 

	 	o
	 	(A)
	 	A BENEFICIAL INTEREST IN THE:
	 
	 	 	 	 	 	 
	 

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

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

	 	 	 	(iii)
	 	IAI Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(B)
	 	A RESTRICTED DEFINITIVE NOTE.






2. After the Transfer the Transferee will hold:




[CHECK ONE]




	 	 	 	 	 	 	 

	 

	 	o
	 	(A)
	 	A BENEFICIAL INTEREST IN THE:
	 
	 	 	 	 	 	 
	 

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

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

	 	 	 	(iii)
	 	IAI Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	Unrestricted Global Note (CUSIP [     ]); or
	 
	 	 	 	 	 	 
	 

	 	o
	 	(B)
	 	A RESTRICTED DEFINITIVE NOTE; OR
	 
	 	 	 	 	 	 
	 

	 	o
	 	(C)
	 	AN UNRESTRICTED DEFINITIVE NOTE,





in accordance with the terms of the Indenture.




B-6









 





EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE



Terremark Worldwide, Inc.

One Biscayne Tower

2 South Biscayne Blvd., Suite 2800

Miami, FL 33131

Attn: Chief Legal Officer




The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway North

2nd Floor

Jacksonville, Florida 32256

Attn: Craig Kaye




          Re: 9.500% Senior Secured Second Lien Notes due 2013



          Reference is hereby made to the Indenture, dated as of November 16, 2010 (the “Indenture”),
among Terremark Worldwide, Inc., a Delaware corporation (the “Company”), the Guarantors and The
Bank of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to them in the Indenture.



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



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



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



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



C-1









 




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




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



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



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



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



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



C-2









 





     [CHECK ONE]




	 	o	 	144A Global Note,
	 
	 	o	 	Regulation S Global Note,
	 
	 	o	 	IAI Global Note,




with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Definitive Note and pursuant
to and in accordance with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.




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



	 	 	 	 	 	 	 

	 

	 	Dated:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






C-3









 





EXHIBIT D

FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Terremark Worldwide, Inc.

One Biscayne Tower

2 South Biscayne Blvd., Suite 2800

Miami, FL 33131

Attn: Chief Legal Officer




The Bank of New York Mellon Trust Company, N.A.

10161 Centurion Parkway North

2nd Floor

Jacksonville, Florida 32256

Attn: Craig Kaye




          Re: 9.500% Senior Secured Second Lien Notes due 2013



          Reference is hereby made to the Indenture, dated as of November 16, 2010 (the “Indenture”),
among Terremark Worldwide, Inc., a Delaware corporation (the “Company”), the Guarantors and The
Bank of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to them in the Indenture.



          In connection with our proposed purchase of $____________ aggregate principal amount at
maturity of:



          (a)   o   beneficial interest in a Global Note, or



          (b)   o   a Definitive Note,



          we confirm that:



          1. We understand that any subsequent transfer of the Second Lien Notes or any interest therein
is subject to certain restrictions and conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Second Lien Notes or any
interest therein except in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the “Securities Act”).



          2. We understand that the offer and sale of the Second Lien Notes have not been registered
under the Securities Act, and that the Second Lien Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the
Second Lien Notes or any interest therein, we will do so only:



D-1









 






     (i)(a) to the Company or any Subsidiary of the Company, (b) pursuant to a registration
statement that has been declared effective under the Securities Act, (c) for so long as the
Second Lien Notes are eligible for resale pursuant to Rule 144A under the Securities Act, to
a person we reasonably believe is a “qualified institutional buyer” as defined in Rule 144A
under the Securities Act that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is an intuitional accredited investor acquiring for its own account or
the account of such an institutional accredited investor, in each case in a minimum
principal amount of the Second Lien Notes of $250,000, for investment purposes and not with
a view to or for offer or sale in connection with any distribution in violation of the
Securities Act, (f) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), or (g) pursuant to another available exemption from the
registration requirements of the Securities Act, subject to the Company’s and the Second
Lien Trustee’s right prior to any such offer, sale or transfer pursuant to clauses (e), (f),
or (g) to require the delivery of an Opinion of Counsel, certification and / or other
information satisfactory to each of them. We further agree to provide to any Person
purchasing the Definitive Note or beneficial interest in a Global Note from us in a
transaction meeting the requirements of clauses (c) through (g) of the foregoing sentence a
notice advising such purchaser that resales thereof are restricted as stated herein.



          3. We understand that, on any proposed resale of the Second Lien Notes or beneficial interest
therein, we will be required to furnish to you and the Company such certifications, legal opinions
and other information as you and the Company may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that the Second Lien Notes
purchased by us will bear a legend to the foregoing effect.



          4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Second Lien Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.



          5. We are acquiring the Second Lien Notes or beneficial interest therein purchased by us for
our own account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion and are not acquiring the
Second Lien Notes with a view to any distribution thereof in a transaction that would violate the
Securities Act of the securities laws of any state of the United States or any other applicable
jurisdiction.



D-2









 





          You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 	 	 	 	 	 	 

	Dated:

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	[Insert Name of Accredited Investor]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 






D-3









 





EXHIBIT E




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS



          Supplemental Indenture (this “Supplemental Indenture”), dated as of _____________, among
__________________ (the “Guaranteeing Subsidiary”), a subsidiary of Terremark Worldwide, Inc. (or
its permitted successor), a Delaware corporation (the “Company”), and The Bank of New York Mellon
Trust Company, N.A. (or its permitted successor), as trustee under the Indenture referred to below
(the “Second Lien Trustee”).



W I T N
E S S E T H




          WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Second Lien Trustee an indenture (the “Indenture”), dated as of November 16, 2010
providing for the issuance of 9.500% Senior Secured Second Lien Notes due 2013 (the “Second Lien
Notes”);



          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Second Lien Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the
Second Lien Notes and the Indenture on the terms and conditions set forth herein (the “Note
Guarantee”)



          WHEREAS, the Guaranteeing Subsidiary is engaged in a related and mutually interdependent
business with the Company and, as a consequence, will derive substantial direct and indirect
financial and business advantages and benefits from the Company’s issuance of the Second Lien
Notes, as guaranteed by the Guaranteeing Subsidiary and each other Guarantor; and



          WHEREAS, pursuant to Section 9.01 of the Indenture, the Second Lien Trustee is authorized to
execute and deliver this Supplemental Indenture.



          NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Second Lien Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of
the Second Lien Notes as follows:



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



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          2. Agreement to Guarantee.



     (a) In accordance with the terms of Article Eleven of the Indenture, the Guaranteeing
Subsidiary, along with all other Guarantors, jointly and severally, and fully and unconditionally,
guarantees to each Holder of a Second Lien Note authenticated and delivered by the Second Lien
Trustee and to the Second Lien Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Second Lien Notes or the obligations of the Company
hereunder or thereunder, that:



               (i) the principal of, premium, if any, and interest and Additional Interest, if any, on the
Second Lien Notes shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest
and Additional Interest, if any, on the Second Lien Notes, if lawful (subject in all cases to any
applicable grace period provided herein), and all other obligations of the Company to the Holders
or the Second Lien Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof;



               (ii) in case of any extension of time of payment or renewal of any Second Lien Notes or any of
such other obligations, 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, the Guarantors shall be jointly and severally obligated to pay the same
immediately. The Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a
guarantee of collection.



     (b) The Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted under
applicable law, its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Second Lien Notes or the Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Second Lien Notes with respect to
any provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.



     (c) The Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Second Lien Notes and the
Indenture.



     (d) The Guaranteeing Subsidiary agrees that if any Holder or the Second Lien Trustee is
required by any court or otherwise to return to the Company, the Guarantors, or any custodian,
trustee, liquidator or other similar official acting in relation to any of the Company or the
Guarantors, any amount paid by any of them to the Second Lien Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.



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     (e) The Guaranteeing Subsidiary agrees that the Guaranteeing Subsidiary 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.



     (f) The Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one hand, and
the Holders and the Second Lien Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six of the Indenture for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article Six of the Indenture, such
obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.



     (g) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of Holders under the
Note Guarantee.



     (h) The Guaranteeing Subsidiary confirms, pursuant to Section 11.02 of the Indenture, that it
is the intention of such Guaranteeing Subsidiary that its Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to its Note Guarantee and, to effectuate the foregoing intention, hereby irrevocably
agrees that the obligations of such Guaranteeing Subsidiary will be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of such Guaranteeing
Subsidiary that are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under Article Eleven of the Indenture, result in
the obligations of such Guaranteeing Subsidiary under its Note Guarantee not constituting a
fraudulent transfer or conveyance.



          3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Note
Guarantees shall remain in full force and effect notwithstanding the absence of the endorsement of
any notation of such Note Guarantee.



          4. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.



          (a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets,
or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person)
another Person, other than the Company or another Guarantor, unless:




     (i) immediately after giving effect to that transaction, no Default or Event of Default
exists; and




     (ii) either:




     (A) the Person acquiring the property in any such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other than



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the Guarantor) is a corporation or limited liability company organized or
existing under the laws of the United States, any state thereof or the District of
Columbia and assumes all the obligations of that Guarantor under the Indenture, its
Note Guarantee and the Registration Rights Agreement pursuant to a supplemental
indenture reasonably satisfactory to the Second Lien Trustee; or




     (B) such sale or other disposition or consolidation or merger does not violate
the provisions of Section 4.10 of the Indenture.



          (b) In case of any such consolidation, merger, sale or conveyance governed by
Section 4(a)(ii)(A) hereof, upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Second Lien Trustee and satisfactory in form to the Second Lien
Trustee, of the Note Guarantee endorsed upon the Second Lien Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be performed by a Guarantor,
such successor Person shall succeed to and be substituted for a 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 Note Guarantees to be endorsed upon all of the Second Lien Notes issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Second
Lien Trustee. All the Note Guarantees so issued shall in all respects have the same legal rank and
benefit under the Indenture as the Note Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.



          5. Release.



          (a) A Guarantor shall be automatically released from its obligations under its Note Guarantee
and the Security Documents, and the Collateral owned by such Guarantor shall be automatically
released from the Lien under the Security Documents: (i) in connection with any sale or other
disposition of Capital Stock of such Guarantor to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of the Company, if such sale or
disposition does not violate Section 4.10 of the Indenture and such Guarantor would no longer be a
Subsidiary as a result of such sale or other disposition; provided that such Guarantor is released
from all Guarantees of any other Indebtedness of the Company or any other Guarantor; (ii) if the
Company designates such Guarantor as an Unrestricted Subsidiary in accordance with the applicable
provisions of the Indenture; or (iii) upon legal or covenant defeasance or satisfaction and
discharge of the Second Lien Notes as permitted under the Indenture. Upon delivery by the Company
to the Second Lien Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that
one of the foregoing requirements has been satisfied and the conditions to the release of a
Guarantor under this Section 5 have been satisfied, the Second Lien Trustee shall execute any
documents reasonably required in order to evidence the release of such Guarantor from its
obligations under its Note Guarantee.



          (b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest and Additional Interest, if any, on the
Second Lien Notes and for the other obligations of any Guarantor under the Indenture as provided in
Article Eleven of the Indenture.



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          6. No Recourse Against Others. Pursuant to Section 13.07 of the Indenture, no
director, officer, employee, incorporator, stockholder, member, manager or partner of the
Guaranteeing Subsidiary shall have any liability for any obligations of such Guaranteeing
Subsidiary under the Second Lien Notes, the Indenture, the Note Guarantees or for any claim based
on, in respect of, or by reason of, such obligations or their creation.



          7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.



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



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



          10. Second Lien Trustee. The Second Lien Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary and the Company.



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