Exhibit 4.2





Exhibit 4.2




INDENTURE




Dated as of November 16, 2010




Among




SUNGARD DATA SYSTEMS INC.,




THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO




and




THE BANK OF NEW YORK MELLON,

as Trustee




75/8% SENIOR NOTES DUE 2020





 


 









 







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)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313(a)
	 	7.06
	(b)(1)
	 	N.A.
	(b)(2)
	 	7.06;7.07
	(c)
	 	7.06;12.02
	(d)
	 	7.06
	314(a)
	 	4.03;12.02;12.05
	(b)
	 	N.A.
	(c)(1)
	 	12.04
	(c)(2)
	 	12.04
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05;12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.14
	316(a)(last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12;9.04
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.12
	(b)
	 	2.04
	318(a)
	 	12.01
	(b)
	 	N.A.
	(c)
	 	12.01








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





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1	 
	 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Other Definitions
	 	 	29	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	30	 
	Section 1.04 Rules of Construction
	 	 	30	 
	Section 1.05 Acts of Holders
	 	 	31	 
	ARTICLE 2	 
	 
	 	 	 	 
	THE NOTES	 
	 
	 	 	 	 
	Section 2.01 Form and Dating; Terms
	 	 	32	 
	Section 2.02 Execution and Authentication
	 	 	34	 
	Section 2.03 Registrar and Paying Agent
	 	 	34	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	35	 
	Section 2.05 Holder Lists
	 	 	35	 
	Section 2.06 Transfer and Exchange
	 	 	35	 
	Section 2.07 Replacement Notes
	 	 	47	 
	Section 2.08 Outstanding Notes
	 	 	47	 
	Section 2.09 Treasury Notes
	 	 	48	 
	Section 2.10 Temporary Notes
	 	 	48	 
	Section 2.11 Cancellation
	 	 	48	 
	Section 2.12 Defaulted Interest
	 	 	48	 
	Section 2.13 CUSIP Numbers
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 3	 
	 
	 	 	 	 
	REDEMPTION	 
	 
	 	 	 	 
	Section 3.01 Notices to Trustee
	 	 	49	 
	Section 3.02 Selection of Notes to Be Redeemed or Purchased
	 	 	49	 
	Section 3.03 Notice of Redemption
	 	 	50	 
	Section 3.04 Effect of Notice of Redemption
	 	 	50	 
	Section 3.05 Deposit of Redemption or Purchase Price
	 	 	51	 
	Section 3.06 Notes Redeemed or Purchased in Part
	 	 	51	 
	Section 3.07 Optional Redemption
	 	 	51	 
	Section 3.08 Mandatory Redemption
	 	 	52	 
	Section 3.09 Offers to Repurchase by Application of Excess Proceeds
	 	 	52	 






 


-i-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 4	 
	 
	 	 	 	 
	COVENANTS	 
	 
	 	 	 	 
	Section 4.01 Payment of Notes
	 	 	54	 
	Section 4.02 Maintenance of Office or Agency
	 	 	54	 
	Section 4.03 Reports and Other Information
	 	 	55	 
	Section 4.04 Compliance Certificate
	 	 	56	 
	Section 4.05 Taxes
	 	 	56	 
	Section 4.06 Stay, Extension and Usury Laws
	 	 	56	 
	Section 4.07 Limitation on Restricted Payments
	 	 	57	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	63	 
	Section 4.09 Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
	 	 	64	 
	Section 4.10 Asset Sales
	 	 	70	 
	Section 4.11 Transactions with Affiliates
	 	 	72	 
	Section 4.12 Liens
	 	 	74	 
	Section 4.13 Corporate Existence
	 	 	74	 
	Section 4.14 Offer to Repurchase Upon Change of Control
	 	 	74	 
	Section 4.15 Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
	 	 	76	 
	Section 4.16 Discharge and Suspension of Covenants
	 	 	77	 
	 
	 	 	 	 
	ARTICLE 5	 
	 
	 	 	 	 
	SUCCESSORS	 
	 
	 	 	 	 
	Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets
	 	 	78	 
	Section 5.02 Successor Corporation Substituted
	 	 	79	 
	 
	 	 	 	 
	ARTICLE 6	 
	 
	 	 	 	 
	DEFAULTS AND REMEDIES	 
	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	80	 
	Section 6.02 Acceleration
	 	 	82	 
	Section 6.03 Other Remedies
	 	 	82	 
	Section 6.04 Waiver of Past Defaults
	 	 	82	 
	Section 6.05 Control by Majority
	 	 	83	 
	Section 6.06 Limitation on Suits
	 	 	83	 
	Section 6.07 Rights of Holders of Notes to Receive Payment
	 	 	83	 
	Section 6.08 Collection Suit by Trustee
	 	 	84	 
	Section 6.09 Restoration of Rights and Remedies
	 	 	84	 
	Section 6.10 Rights and Remedies Cumulative
	 	 	84	 
	Section 6.11 Delay or Omission Not Waiver
	 	 	84	 
	Section 6.12 Trustee May File Proofs of Claim
	 	 	84	 
	Section 6.13 Priorities
	 	 	85	 
	Section 6.14 Undertaking for Costs
	 	 	85	 






 


-ii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 7	 
	 
	 	 	 	 
	TRUSTEE	 
	 
	 	 	 	 
	Section 7.01 Duties of Trustee
	 	 	85	 
	Section 7.02 Rights of Trustee
	 	 	86	 
	Section 7.03 Individual Rights of Trustee
	 	 	87	 
	Section 7.04 Trustee’s Disclaimer
	 	 	88	 
	Section 7.05 Notice of Defaults
	 	 	88	 
	Section 7.06 Reports by Trustee to Holders of the Notes
	 	 	88	 
	Section 7.07 Compensation and Indemnity
	 	 	88	 
	Section 7.08 Replacement of Trustee
	 	 	89	 
	Section 7.09 Successor Trustee by Merger, Etc.
	 	 	90	 
	Section 7.10 Eligibility; Disqualification
	 	 	90	 
	Section 7.11 Preferential Collection of Claims Against Issuer
	 	 	90	 
	 
	 	 	 	 
	ARTICLE 8	 
	 
	 	 	 	 
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 
	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	90	 
	Section 8.02 Legal Defeasance and Discharge
	 	 	91	 
	Section 8.03 Covenant Defeasance
	 	 	91	 
	Section 8.04 Conditions to Legal or Covenant Defeasance
	 	 	92	 
	Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
	 	 	93	 
	Section 8.06 Repayment to Issuer
	 	 	93	 
	Section 8.07 Reinstatement
	 	 	94	 
	 
	 	 	 	 
	ARTICLE 9	 
	 
	 	 	 	 
	AMENDMENT, SUPPLEMENT AND WAIVER	 
	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Notes
	 	 	94	 
	Section 9.02 With Consent of Holders of Notes
	 	 	95	 
	Section 9.03 Compliance with Trust Indenture Act
	 	 	96	 
	Section 9.04 Revocation and Effect of Consents
	 	 	97	 
	Section 9.05 Notation on or Exchange of Notes
	 	 	97	 
	Section 9.06 Trustee to Sign Amendments, Etc.
	 	 	97	 
	Section 9.07 Payment for Consent
	 	 	97	 
	 
	 	 	 	 
	ARTICLE 10	 
	 
	 	 	 	 
	GUARANTEES	 
	 
	 	 	 	 
	Section 10.01 Guarantee
	 	 	98	 
	Section 10.02 Limitation on Guarantor Liability
	 	 	99	 
	Section 10.03 Execution and Delivery
	 	 	99	 
	Section 10.04 Subrogation
	 	 	100	 
	Section 10.05 Benefits Acknowledged
	 	 	100	 
	Section 10.06 Release of Guarantees
	 	 	100	 






 


-iii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 11	 
	 
	 	 	 	 
	SATISFACTION AND DISCHARGE	 
	 
	 	 	 	 
	Section 11.01 Satisfaction and Discharge
	 	 	101	 
	Section 11.02 Application of Trust Money
	 	 	102	 
	 
	 	 	 	 
	ARTICLE 12	 
	 
	 	 	 	 
	MISCELLANEOUS	 
	 
	 	 	 	 
	Section 12.01 Trust Indenture Act Controls
	 	 	102	 
	Section 12.02 Notices
	 	 	102	 
	Section 12.03 Communication by Holders of Notes with Other Holders of Notes
	 	 	103	 
	Section 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	103	 
	Section 12.05 Statements Required in Certificate or Opinion
	 	 	104	 
	Section 12.06 Rules by Trustee and Agents
	 	 	104	 
	Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	104	 
	Section 12.08 Governing Law
	 	 	104	 
	Section 12.09 Waiver of Jury Trial
	 	 	104	 
	Section 12.10 Force Majeure
	 	 	104	 
	Section 12.11 No Adverse Interpretation of Other Agreements
	 	 	105	 
	Section 12.12 Successors
	 	 	105	 
	Section 12.13 Severability
	 	 	105	 
	Section 12.14 Counterpart Originals
	 	 	105	 
	Section 12.15 Table of Contents, Headings, Etc.
	 	 	105	 
	Section 12.16 Qualification of Indenture
	 	 	105	 






EXHIBITS




	 	 	 
	Exhibit A
	 	Form of Note
	Exhibit B
	 	Form of Certificate of Transfer
	Exhibit C
	 	Form of Certificate of Exchange
	Exhibit D
	 	Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors





 


-iv-









 





INDENTURE, dated as of November 16, 2010, among SunGard Data Systems Inc., a Delaware
corporation (the “Company”), the Guarantors (as defined herein) listed on the signature
pages hereto and The Bank of New York Mellon, a New York banking corporation, as Trustee.



W I T N E S S E T H




WHEREAS, the Company has duly authorized the creation of an issue of $700,000,000 aggregate
principal amount of 75/8% Senior Notes due 2020 (the “Initial Notes”); and



WHEREAS, the Company and each of the Guarantors have duly authorized the execution and
delivery of this Indenture.



NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the Notes.



ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.01 Definitions.



“2018 Notes” means the $900,000,000 aggregate principal amount of the Company’s 73/8%
Senior Notes due 2018 issued on the Issue Date.



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




“Acquired Indebtedness” means, with respect to any specified Person,




(1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Restricted Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, 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.



“Additional Interest” means all additional interest then owing pursuant to the
Registration Rights Agreement.



“Additional Notes” means additional Notes (other than the Initial Notes and other than
Exchange Notes for such Initial Notes) issued from time to time under this Indenture in accordance
with Sections 2.01, 2.02 and 4.09 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” (including, with correlative meanings, the
terms “controlling,” “controlled by” and “under common control with”), as
used with respect to any Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or otherwise.


 


 









 






“Agent” means any Registrar or Paying Agent.



“Agent’s Message” means a message transmitted by DTC to, and received by, the exchange
agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an
express acknowledgment from each participant in DTC tendering the Notes that such participants have
received the Letter of Transmittal and agree to be bound by the terms of the Letter of Transmittal
and the Issuer may enforce such agreement against such participants.



“Applicable Premium” means, with respect to any Note on any Redemption Date, the
greater of:




(1) 1.0% of the principal amount of such Note; and




(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the
redemption price of such Note at November 15, 2015 (such redemption price being set forth in
Section 3.07 hereof), plus (ii) all required interest payments due on such Note through
November 15, 2015 (excluding accrued but unpaid interest to the Redemption Date), computed
using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis
points; over (b) the principal amount of such Note.



“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/or Clearstream that apply to such transfer or exchange.




“Asset Sale” means:




(1) the sale, conveyance, transfer or other disposition, whether in a single
transaction or a series of related transactions, of property or assets (including by way of
a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries (each
referred to in this definition as a “disposition”); or




(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than
Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.09), whether
in a single transaction or a series of related transactions;



in each case, other than:




(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or
worn out equipment in the ordinary course of business or any disposition of inventory or
goods (or other assets) held for sale in the ordinary course of business;




(b) the disposition of all or substantially all of the assets of the Issuer in a manner
permitted pursuant to the provisions described under Section 5.01 hereof or any disposition
that constitutes a Change of Control pursuant to this Indenture;




(c) the making of any Restricted Payment or Permitted Investment that is permitted to
be made, and is made, under Section 4.07 hereof;


 


-2-









 






(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of transactions with an aggregate fair market
value of less than $50.0 million;




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




(f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986 or
any comparable or successor provision, any exchange of like property (excluding any boot
thereon) for use in a Similar Business;




(g) the lease, assignment or sub-lease of any real or personal property in the ordinary
course of business;




(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary;




(i) foreclosures, condemnation or any similar action on assets;




(j) sales of accounts receivable, or participations therein, in connection with any
Receivables Facility;




(k) any financing transaction with respect to the acquisition or construction of
property by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and
Lease-Back Transactions and asset securitizations permitted by this Indenture; and




(l) any surrender or waiver of contractual rights or the settlement, release or
surrender of contractual rights or other litigation claims in the ordinary course of
business.



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




“Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.




“Business Day” means each day which is not a Legal Holiday.




“Capital Stock” means:




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




(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.



“Capitalized Lease Obligation” means, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at such time be required
to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto)
in accordance
with GAAP.


 


-3-









 





“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted
Subsidiaries during such period in respect of purchased software or internally developed software
and software enhancements that, in conformity with GAAP, are or are required to be reflected as
capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.




“Cash Equivalents” means:




(1) United States dollars;




(2) (a) euro, or any national currency of any participating member state of the EMU;
or




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




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




(4) certificates of deposit, time deposits and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $500.0 million in the case of U.S. banks and $100.0
million (or the U.S. dollar equivalent as of the date of determination) in the case of
non-U.S. banks;




(5) repurchase obligations for underlying securities of the types described in clauses
(3) and (4) entered into with any financial institution meeting the qualifications specified
in clause (4) above;




(6) commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each
case maturing within 24 months after the date of creation thereof;




(7) marketable short-term money market and similar securities having a rating of at
least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating
Agency) and in each case maturing within 24 months after the date of creation thereof;




(8) investment funds investing 95% of their assets in securities of the types described
in clauses (1) through (7) above;




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




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




(11) Investments with average maturities of 12 months or less from the date of
acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or
Aaa3 (or the equivalent thereof) or better by Moody’s.


 


-4-









 





Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in
currencies other than those set forth in clauses (1) and (2) above, provided that such
amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable
and in any event within ten Business Days following the receipt of such amounts.




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




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




(2) the Issuer becomes aware of (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition
by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than the Permitted Holders, in a single transaction or in a related
series of transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act,
or any successor provision) of 50% or more of the total voting power of the Voting Stock of
the Issuer or any of its direct or indirect parent companies holding directly or indirectly
100% of the total voting power of the Voting Stock of the Issuer.




“Clearstream” means Clearstream Banking, Société Anonyme.



“Consolidated Depreciation and Amortization Expense” means with respect to any Person
for any period, the total amount of depreciation and amortization expense, including the
amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and
Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period on
a consolidated basis and otherwise determined in accordance with GAAP.



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




(1) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, to the extent such expense was deducted (and not added back) in computing
Consolidated Net Income (including (a) amortization of original issue discount or premium
resulting from the issuance of Indebtedness at less than or greater than par, as applicable,
(b) all commissions, discounts and other fees and charges owed with respect to letters of
credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash
interest expense attributable to the movement in the mark to market valuation of Hedging
Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate
Hedging Obligations with respect to Indebtedness, and excluding (t) accretion


 


-5-









 






or accrual of
discounted liabilities not constituting Indebtedness, (u) interest expense attributable to
Indebtedness of a parent entity resulting from push-down accounting to the extent such Person and its Restricted Subsidiaries are not liable for
the payment of such Indebtedness, (v) any expense resulting from the discounting of any
outstanding Indebtedness in connection with the application of purchase accounting in
connection with any acqusition, (w) any Additional Interest and any comparable “additional
interest” with respect to other securities, (x) amortization of deferred financing fees,
debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment
and other financing fees and (z) commissions, discounts, yield and other fees and charges
(including any interest expense) related to any Receivables Facility); plus




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




(3) interest income for such period.



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



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




(1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including relating to the
Transaction to the extent incurred on or prior to June 30, 2006), severance, relocation
costs and curtailments or modifications to pension and post-retirement employee benefit
plans shall be excluded,




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




(3) any after-tax effect of income (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,




(4) any after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course of business,
as determined in good faith by the Issuer, shall be excluded,




(5) the Net Income for such period of any Person that is not a Subsidiary, or is an
Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall
be excluded; provided that Consolidated Net Income of the Issuer shall be increased
by the amount of dividends or distributions or other payments that are actually paid in cash
(or to the extent converted into cash) to the referent Person or a Restricted Subsidiary
thereof in respect of such period,


 


-6-









 






(6) solely for the purpose of determining the amount available for Restricted Payments
under clause (3)(a) of Section 4.07(a) hereof, the Net Income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded if the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of its Net
Income is not at the date of determination wholly permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the operation of the
terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule, or governmental regulation
applicable to that Restricted Subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or similar distributions has been legally waived,
provided that Consolidated Net Income of the Issuer will be increased by the amount
of dividends or other distributions or other payments actually paid in cash (or to the
extent converted into cash) to the Issuer or a Restricted Subsidiary thereof in respect of
such period, to the extent not already included therein,




(7) effects of adjustments (including the effects of such adjustments pushed down to
the Issuer and its Restricted Subsidiaries) in the property and equipment, software and
other intangible assets, deferred revenue and debt line items in such Person’s consolidated
financial statements pursuant to GAAP resulting from the application of purchase accounting
in relation to the Transaction or any consummated acquisition or the amortization or
write-off of any amounts thereof, net of taxes, shall be excluded,




(8) any after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments shall be excluded,




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




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




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




(12) accruals and reserves that are established within twelve months after August 11,
2005 that are so required to be established as a result of the Transaction in accordance
with GAAP shall be excluded, and




(13) to the extent covered by insurance and actually reimbursed, or, so long as the
Issuer has made a determination that there exists reasonable evidence that such amount will
in fact be reimbursed by the insurer and only to the extent that such amount is (a) not
denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed
within 365 days of the date of such evidence (with a deduction for any amount so added back
to the extent not so reimbursed within 365 days), losses and expenses with respect to
liability or casualty events or business interruption shall be excluded.



Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only (other than clause
(3)(d) of Section 4.07(a) hereof), there shall be excluded from Consolidated Net Income any income
arising from any sale or other disposition of Restricted Investments made by the Issuer and its
Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Issuer
and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted
Investments by the Issuer or any of its Restricted Subsidiaries, any sale of the stock of an
Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each
case only to the extent such amounts increase the amount of Restricted Payments permitted under
clause (3)(d) of Section 4.07(a) hereof.


 


-7-









 





“Consolidated Secured Debt Ratio” as of any date of determination means, the ratio of
(1) Consolidated Total Indebtedness of the Issuer and its Restricted Subsidiaries that is secured
by Liens as of the end of the most recent fiscal period for which internal financial statements are
available immediately preceding the date on which such event for which such calculation is being
made shall occur to (2) the Issuer’s EBITDA for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date on which such
event for which such calculation is being made shall occur, in each case with such pro forma
adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with
the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.



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



“Contingent Obligations” means, with respect to any Person, any obligation of such
Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness
(“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent,




(1) to purchase any such primary obligation or any property constituting direct or
indirect security therefor,




(2) to advance or supply funds




(a) for the purchase or payment of any such primary obligation, or




(b) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, or



(3) to purchase property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.



“Corporate Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to
the Holders and the Issuer.


 


-8-









 





“Credit Facilities” means, with respect to the Issuer or any of its Restricted
Subsidiaries,
one or more debt facilities, including the Senior Credit 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 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
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
hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.



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



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



“Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06(c) hereof, substantially in the form of
Exhibit A-1 or A-2 hereto, as the case may be, except that such Note shall not bear
the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global
Note” attached thereto.



“Depositary” means, with respect to the Notes issuable or issued in whole or in part
in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as Depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.



“Designated Non-cash Consideration” means the fair market value of non-cash
consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale
that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate,
setting forth the basis of such valuation, executed by the principal financial officer of the
Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale
of or collection on such Designated Non-cash Consideration.



“Designated Preferred Stock” means Preferred Stock of the Issuer or any parent
corporation thereof (in each case other than Disqualified Stock) that is issued for cash (other
than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the
Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to
an Officer’s Certificate executed by the principal financial officer of the Issuer or the
applicable parent corporation thereof, as the case may be, on the issuance date thereof, the cash
proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a)
hereof.



“Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person which, by its terms, or by the terms of any security into which it is convertible or for
which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale) pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other
than solely as a result of a change of control or asset sale), in whole or in part, in each case
prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes
are no longer outstanding; provided, however, that if such Capital Stock is issued
to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Stock solely because it
may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations.


 


-9-









 





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




(1) increased (without duplication) by:




(a) provision for taxes based on income or profits or capital gains, including,
without limitation, federal, state, foreign, franchise and similar taxes (such as
the Pennsylvania capital tax) and foreign withholding taxes (including penalties and
interest related to such taxes or arising from tax examinations) of such Person paid
or accrued during such period deducted (and not added back) in computing
Consolidated Net Income; plus




(b) Fixed Charges of such Person for such period (including (x) net losses or
Hedging Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk and (y) costs of surety bonds in connection with
financing activities, in each case, to the extent included in Fixed Charges),
together with items excluded from the definition of “Consolidated Interest Expense”
pursuant to clauses (1)(t) through (1)(z) thereof, to the extent the same were
deducted (and not added back) in calculating such Consolidated Net Income; plus




(c) Consolidated Depreciation and Amortization Expense of such Person for such
period to the extent the same were deducted (and not added back) in computing
Consolidated Net Income; plus




(d) any expenses or charges (other than depreciation or amortization expense)
related to any Equity Offering, Permitted Investment, acquisition, disposition,
recapitalization or the incurrence of Indebtedness permitted to be incurred by this
Indenture (including a refinancing thereof) (whether or not successful), including
(i) such fees, expenses or charges related to the offering of the Notes and (ii) any
amendment or other modification of the Notes, and, in each case, deducted (and not
added back) in computing Consolidated Net Income; plus




(e) the amount of any restructuring charge or reserve deducted (and not added
back) in such period in computing Consolidated Net Income, 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




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




(g) the amount of any minority interest expense consisting of Subsidiary income
attributable to minority equity interests of third parties in any non-Wholly Owned
Subsidiary deducted (and not added back) in such period in calculating Consolidated
Net
Income; plus


 


-10-









 






(h) the amount of management, monitoring, consulting and advisory fees and
related expenses paid in such period to the Investors to the extent otherwise
permitted under Section 4.11 hereof; plus




(i) the amount of net cost savings projected by the Issuer in good faith to be
realized as a result of specified actions taken during such period (calculated on a
pro forma basis as though such cost savings had been realized on the first day of
such period), net of the amount of actual benefits realized during such period from
such actions; provided that (x) such cost savings are reasonably
identifiable and factually supportable, (y) such actions are taken within 36 months
after the Issue Date and (z) the aggregate amount of cost savings added pursuant to
this clause (i) shall not exceed $100.0 million for any four consecutive quarter
period (which adjustments may be incremental to pro forma adjustments made pursuant
to the second paragraph of the definition of “Fixed Charge Coverage Ratio”); plus




(j) the amount of loss on sale of receivables and related assets to the
Receivables Subsidiary in connection with a Receivables Facility; plus




(k) any costs or expense incurred by the Issuer or a Restricted Subsidiary
pursuant to any management equity plan or stock option plan or any other management
or employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded with cash proceeds
contributed to the capital of the Issuer or net cash proceeds of an issuance of
Equity Interest of the Issuer (other than Disqualified Stock) solely to the extent
that such net cash proceeds are excluded from the calculation set forth in clause
(3) of Section 4.07(a) hereof;




(2) decreased by (without duplication) non-cash gains increasing Consolidated Net
Income of such Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that reduced
EBITDA in any prior period, and




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




(a) any net gain or loss resulting in such period from Hedging Obligations and
the application of Statement of Financial Accounting Standards Codification No. 815
— Derivatives and Hedging; plus or minus, as applicable, and




(b) any net gain or loss resulting in such period from currency translation
gains or losses related to currency remeasurements of Indebtedness (including any
net loss or gain resulting from hedge agreements for currency exchange risk and
revaluations of intercompany balances).



“EMU” means economic and monetary union as contemplated in the Treaty on European
Union.



“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.


 


-11-









 





“Equity Offering” means any public or private sale of common stock or Preferred Stock
of the Issuer or any of its direct or indirect parent companies (excluding Disqualified
Stock), other than:




(1) public offerings with respect to the Issuer’s or any direct or indirect parent
company’s common stock registered on Form S-8;




(2) issuances to any Subsidiary of the Issuer; and




(3) any such public or private sale that constitutes an Excluded Contribution.




“euro” means the single currency of participating member states of the EMU.




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



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



“Exchange Notes” means the Notes issued in the Exchange Offer pursuant to Section
2.06(f) hereof.




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



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



“Excluded Contribution” means net cash proceeds, marketable securities or Qualified
Proceeds received by the Issuer from




(1) contributions to its common equity capital, and




(2) the sale (other than to a Subsidiary of the Issuer or to any management equity plan
or stock option plan or any other management or employee benefit plan or agreement of the
Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of
the Issuer,



in each case designated as Excluded Contributions pursuant to an officer’s certificate executed by
the principal financial officer of the Issuer on the date such capital contributions are made or
the date such Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in clause (3) of Section 4.07(a) hereof.



“Existing
91/8 Notes” means any of the
Company’s 91/8% senior notes due 2013 issued on
August 1, 2005 and outstanding on the Issue Date after giving effect to the use of proceeds of the
Notes as described in the Offering Memorandum.



“Existing 10.625% Notes” means the $500,000,000 aggregate principal amount of the
Company’s 10.625% senior notes due 2015 issued on September 29, 2008 and outstanding on the Issue
Date.



“Existing Senior Notes” means (a) the Existing 91/8% Notes and (b) the Existing 10.625%
Notes.



“Existing Senior Secured Notes” means the $250.0 million aggregate principal amount of
the Company’s 4.875% senior notes due 2014 issued on January 15, 2004 and outstanding on the Issue
Date.


 


-12-









 





“Existing Senior Subordinated Notes” means the $1,000,000,000 aggregate principal
amount of the Company’s 101/4% senior subordinated notes due 2015 issued on August 11, 2005 and
outstanding on the Issue Date.



“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the
ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period.
In the event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving
credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously
with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed
Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption,
retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock
or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter
period.



For purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined in accordance with
GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or prior to or
simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro
forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations
and disposed operations (and the change in any associated fixed charge obligations and the change
in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period.
If since the beginning of such period any Person that subsequently became a Restricted Subsidiary
or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of
such period shall have made any Investment, acquisition, disposition, merger, consolidation or
disposed operation that would have required adjustment pursuant to this definition, then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if
such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred
at the beginning of the applicable four-quarter period.



For purposes of this definition, whenever pro forma effect is to be given to a transaction,
the pro forma calculations shall be made in good faith by a responsible financial or accounting
officer of the Issuer. If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on
the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire period
(taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by
a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro
forma basis shall be computed based upon the average daily balance of such Indebtedness during the
applicable period except as set forth in the first paragraph of this definition. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been
based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the
Issuer may designate.


 


-13-









 





“Fixed Charges” means, with respect to any Person for any period, the sum of:




(1) Consolidated Interest Expense of such Person for such period;




(2) all cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period; and




(3) all cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such period.



“Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of
such Person that is not organized or existing under the laws of the United States, any state
thereof, the District of Columbia, or any territory thereof and any Restricted Subsidiary of such
Foreign Subsidiary.



“GAAP” means generally accepted accounting principles in the United States which are
in effect on August 11, 2005.



“Global Note Legend” means the legend set forth in Section 2.06(g)(ii) hereof, which
is required to be placed on all Global Notes issued under this Indenture.



“Global Notes” means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A-1 or
A-2 hereto, as the case may be, issued in accordance with Section 2.01, 2.06(b), 2.06(d) or
2.06(f) hereof.




“Government Securities” means securities that are:




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




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



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



“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
letters of credit and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.



“Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under
this Indenture.



“Guarantor” means, each Restricted Subsidiary that Guarantees the Notes in accordance
with the terms of this Indenture.


 


-14-









 





“Hedging Obligations” means, with respect to any Person, the obligations of such
Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign
exchange contract, currency swap agreement or similar agreement providing for the transfer or
mitigation of interest rate or currency risks either generally or under specific contingencies.




“Holder” means the Person in whose name a Note is registered on the Registrar’s books.




“Indebtedness” means, with respect to any Person, without duplication:




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




(a) in respect of borrowed money;




(b) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers’ acceptances (or, without duplication, reimbursement agreements in
respect thereof);




(c) representing the balance deferred and unpaid of the purchase price of any
property (including Capitalized Lease Obligations), except (i) any such balance that
constitutes a trade payable or similar obligation to a trade creditor, in each case
accrued in the ordinary course of business and (ii) any earn-out obligation until,
after 30 days of becoming due and payable, has not been paid and such obligation
becomes a liability on the balance sheet of such Person in accordance with GAAP; or




(d) representing any Hedging Obligations;




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




(2) to the extent not otherwise included, any obligation by such Person to be liable
for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred
to in clause (1) of a third Person (whether or not such items would appear upon the balance
sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for
collection in the ordinary course of business; and




(3) to the extent not otherwise included, the obligations of the type referred to in
clause (1) of a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person;



provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed
not to include (a) Contingent Obligations incurred in the ordinary course of business or (b)
obligations under or in respect of Receivables Facilities.




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



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


 


-15-









 





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




“Initial Notes” as defined in the recitals hereto.



“Initial Purchasers” means J.P. Morgan Securities LLC, Goldman, Sachs & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Credit Suisse Securities
(USA) LLC, Deutsche Bank Securities Inc. and Morgan Stanley & Co. Incorporated.




“Interest Payment Date” means May 15 and November 15 of each year to stated maturity.



“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, or an equivalent rating by any other
Rating Agency.




“Investment Grade Securities” means:




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




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




(3) investments in any fund that invests exclusively in investments of the type
described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending
investment or distribution; and




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



“Investments” means, with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the form of loans (including guarantees), advances or
capital contributions (excluding accounts receivable, trade credit, advances to customers,
commission, travel and similar advances to officers and employees, in each case made in the
ordinary course of business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities issued by any other Person and investments that are required
by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same
manner as the other investments included in this definition to the extent such transactions involve
the transfer of cash or other property. For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.07 hereof:




(1) “Investments” shall include the portion (proportionate to the Issuer’s equity
interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent
“Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:




(a) the Issuer “Investment” in such Subsidiary at the time of such
redesignation; less




(b) the portion (proportionate to the Issuer Equity Interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation; and


 


-16-









 






(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined in good faith
by the Issuer.



“Investors” means Silver Lake Partners, Bain Capital Partners, The Blackstone Group,
Goldman Sachs Capital Partners, Kohlberg Kravis Roberts & Co. L.P., Providence Equity Partners,
Inc., Texas Pacific Group and each of their respective Affiliates but not including, however, any
portfolio companies of any of the foregoing.




“Issue Date” means November 16, 2010.



“Issuer” means the Company; provided that when used in the context of
determining the fair market value of an asset or liability under this Indenture, “Issuer” shall be
deemed to mean the board of directors of the Issuer when the fair market value is equal to or in
excess of $250.0 million (unless otherwise expressly stated).



“Issuer Order” means a written request or order signed on behalf of the Issuer by an
Officer of the Issuer, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Issuer, and delivered to the
Trustee.



“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking
institutions are not required to be open in the State of New York.



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



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



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




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


 


-17-









 





“Net Proceeds” means the aggregate cash proceeds received by the Issuer or any of its
Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or
other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the
direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash
Consideration, including legal, accounting and investment banking fees, and brokerage and sales
commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements), amounts required to
be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness
required (other than required by clause (1) of Section 4.10(b) hereof) to be paid as a result of
such transaction and any deduction of appropriate amounts to be provided by the Issuer or any of
its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated
with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted
Subsidiaries after such sale or other disposition thereof, including pension and other
post-employment benefit liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction.




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



“Notes” means the Initial Notes and more particularly means any Note authenticated and
delivered under this Indenture. For all purposes of this Indenture, the term “Notes” shall also
include any Additional Notes that may be issued under a supplemental indenture.



“Obligations” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), penalties, fees, indemnifications,
reimbursements (including reimbursement obligations with respect to letters of credit and banker’s
acceptances), damages and other liabilities, and guarantees of payment of such principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the
documentation governing any Indebtedness.



“Offering Memorandum” means the offering memorandum, dated November 1, 2010, relating
to the sale of the Initial Notes.



“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer or the Secretary of the Issuer or a Guarantor, as applicable.



“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an
Officer of the Issuer or on behalf of a Guarantor, who must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer of the Issuer, that
meets the requirements set forth in this Indenture.



“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to the Issuer or the Trustee.



“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 Asset Swap” means the concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between
the Issuer or any of its Restricted Subsidiaries and another Person; provided, that any
cash or Cash Equivalents received must be applied in accordance with Section 4.10 hereof.


 


-18-









 





“Permitted Holders” means each of the Investors and members of management of the
Issuer (or its direct parent) who are holders of Equity Interests of the Issuer (or any of its
direct or indirect parent companies) on the Issue Date and any group (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the
foregoing are members;
provided, that, in the case of such group and without giving effect to the existence
of such group or any other group, such Investors and members of management, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Issuer
or any of its direct or indirect parent companies. Any Person or group whose acquisition of
beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer
is made in accordance with the requirements of the Indenture will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.




“Permitted Investments” means:




(1) any Investment in the Issuer or any of its Restricted Subsidiaries;




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




(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person that
is engaged in a Similar Business if as a result of such Investment:




(a) such Person becomes a Restricted Subsidiary; or




(b) such Person, in one transaction or a series of related transactions, is
merged or consolidated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary,




and, in each case, any Investment held by such Person; provided, that such
Investment was not acquired by such Person in contemplation of such acquisition, merger,
consolidation or transfer;




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




(5) any Investment existing on the Issue Date;




(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:




(a) in exchange for any other Investment or accounts receivable held by the
Issuer or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable; or




(b) as a result of a foreclosure by the Issuer or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title with
respect to any secured Investment in default;




(7) Hedging Obligations permitted under clause (10) of Section 4.09(b) hereof;




(8) any Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (8) that are at that time
outstanding, not to exceed 2.5% of Total Assets at the time of such Investment (with the
fair market value of each Investment being measured at the time made and without giving
effect to subsequent changes in value);


 


-19-









 






(9) Investments the payment for which consists of Equity Interests (exclusive of
Disqualified Stock) of the Issuer, or any of its direct or indirect parent companies;
provided, however, that such Equity Interests will not increase the amount
available for Restricted Payments under clause (3) of Section 4.07(a) hereof;




(10) guarantees of Indebtedness permitted under Section 4.09 hereof;




(11) any transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 4.11(b) hereof (except transactions
described in clauses (2), (5) and (9) of Section 4.11(b) hereof);




(12) Investments consisting of purchases and acquisitions of inventory, supplies,
material or equipment;




(13) additional Investments having an aggregate fair market value, taken together with
all other Investments made pursuant to this clause (13) that are at that time outstanding
(without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds
of such sale do not consist of cash or marketable securities), not to exceed the greater of
(x) $750.0 million or (y) 3.5% of Total Assets at the time of such Investment (with the fair
market value of each Investment being measured at the time made and without giving effect to
subsequent changes in value);




(14) Investments relating to a Receivables Subsidiary that, in the good faith
determination of the Issuer are necessary or advisable to effect any Receivables Facility;




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




(16) loans and advances to officers, directors and employees for business-related
travel expenses, moving expenses and other similar expenses, in each case incurred in the
ordinary course of business or consistent with past practices or to fund such Person’s
purchase of Equity Interests of the Issuer or any direct or indirect parent company thereof.




“Permitted Liens” means, with respect to any Person:




(1) pledges or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case incurred in the ordinary course of business;




(2) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in
each case for sums not yet overdue for a period of more than 30 days or being contested in
good faith by appropriate proceedings or other Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be proceeding with an
appeal or other proceedings for review if adequate reserves with respect thereto are
maintained on the books of such Person in accordance with GAAP;


 


-20-









 






(3) Liens for taxes, assessments or other governmental charges not yet overdue for a
period of more than 30 days or payable or subject to penalties for nonpayment or which
are being contested in good faith by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;




(4) Liens in favor of issuers of performance and surety bonds or bid bonds or with
respect to other regulatory requirements or letters of credit issued pursuant to the request
of and for the account of such Person in the ordinary course of its business;




(5) minor survey exceptions, minor encumbrances, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as to the use of
real properties or Liens incidental, to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with Indebtedness and
which do not in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;




(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (4),
(12)(b), (18) or (19) of Section 4.09(b) hereof; provided that Liens securing
Indebtedness permitted to be incurred pursuant to clause (18) extend only to the assets of
Foreign Subsidiaries and Liens securing Indebtedness permitted to be incurred pursuant to
clause (19) are solely on acquired property or the assets of the acquired entity, as the
case may be;




(7) Liens existing on the Issue Date;




(8) Liens on property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, such Liens are not created or incurred in
connection with, or in contemplation of, such other Person becoming such a Subsidiary;
provided further, however, that such Liens may not extend to any
other property owned by the Issuer or any of its Restricted Subsidiaries;




(9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with or into the
Issuer or any of its Restricted Subsidiaries; provided, however, that such
Liens are not created or incurred in connection with, or in contemplation of, such
acquisition; provided further, however, that the Liens may not
extend to any other property owned by the Issuer or any of its Restricted Subsidiaries;




(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing
to the Issuer or another Restricted Subsidiary permitted to be incurred in accordance with
Section 4.09 hereof;




(11) customary Liens securing Hedging Obligations entered into in the ordinary course
of business by the Issuer or its Restricted Subsidiaries;




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




(13) leases, subleases, licenses or sublicenses granted to others in the ordinary
course of business which do not materially interfere with the ordinary conduct of the
business of the Issuer or any of its Restricted Subsidiaries and do not secure any Indebtedness;


 


-21-









 






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




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




(16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries granted in
the ordinary course of business to the Issuer’s clients;




(17) Liens on accounts receivable and related assets incurred in connection with a
Receivables Facility;




(18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in
part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7),
(8), (9) and (27); provided, however, that (a) such new Lien shall be
limited to all or part of the same property that secured the original Lien (plus
improvements on such property), and (b) the Indebtedness secured by such Lien at such time
is not increased to any amount greater than the sum of (i) the outstanding principal amount
or, if greater, committed amount of the Indebtedness described under clauses (6), (7), (8),
(9) and (27) at the time the original Lien became a Permitted Lien under this Indenture, and
(ii) an amount necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement;




(19) deposits made in the ordinary course of business to secure liability to insurance
carriers;




(20) other Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $50.0 million at any one time outstanding;




(21) Liens securing judgments for the payment of money not constituting an Event of
Default under clause (5) under Section 6.01 hereof so long as such Liens are adequately
bonded and any appropriate legal proceedings that may have been duly initiated for the
review of such judgment have not been finally terminated or the period within which such
proceedings may be initiated has not expired;




(22) 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 in the ordinary
course of business;




(23) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code, or any comparable or successor provision, on items in the course of
collection, (ii) attaching to commodity trading accounts or other commodity brokerage
accounts incurred in the ordinary course of business, and (iii) in favor of banking
institutions arising as a matter of law encumbering deposits (including the right of
set-off) and which are within the general parameters customary in the banking industry;




(24) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 4.09 hereof; provided that such Liens do not extend to any
assets other than those that are the subject of such repurchase agreement;


 


-22-









 






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




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




(27) Liens to secure the Existing Senior Secured Notes.



For purposes of this definition and Sections 4.12(2)(B) and (C), the term “Indebtedness” shall
be deemed to include interest on such Indebtedness.



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



“Preferred Stock” means any Equity Interest with preferential rights of payment of
dividends or upon liquidation, dissolution, or winding up.



“Private Placement Legend” means the legend set forth in Section 2.06(g)(i) hereof to
be placed on all Notes issued under this Indenture, except where otherwise permitted by the
provisions of this Indenture.




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



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



“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a
rating on the Notes publicly available, a nationally recognized statistical rating agency or
agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P
or both, as the case may be.



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



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


 


-23-









 





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



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



“Registration Rights Agreement” means the Registration Rights Agreement related to the
Notes dated as of the Issue Date, among the Company, the Guarantors and the Initial Purchasers, as
such agreement may be amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements between the Issuer and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuer to the purchasers of Additional Notes to register such
Additional Notes under the Securities Act.




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



“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S
Permanent Global Note, as applicable.



“Regulation S Permanent Global Note” means a permanent Global Note in the form of
Exhibit A-1 or Exhibit A-2 hereto, as the case may be, bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Regulation S Temporary Global Note upon expiration of the Restricted Period.



“Regulation S Temporary Global Note” means a temporary Global Note in the form of
Exhibit A-1 or Exhibit A-2 hereto, as the case may be, bearing the Global Note
Legend, the Private Placement Legend and the Regulation S Temporary Global Note 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 of the Notes initially sold in reliance
on Rule 903.



“Regulation S Temporary Global Note Legend” means the legend set forth in Section
2.06(g)(iii) hereof.



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



“Responsible Officer” means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
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.


 


-24-









 






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




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



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



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




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




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




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




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



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



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




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



“Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted
Subsidiaries secured by a Lien.



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



“Senior Credit Facilities” means the Credit Facility under the Amended and Restated
Credit Agreement dated as of August 11, 2005, as amended and restated as of June 9, 2009, by and
among SunGard Holdco LLC, the Issuer, the lenders party thereto in their capacities as lenders
thereunder and JPMorgan Chase Bank, N.A., as Administrative Agent, including any guarantees,
collateral documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements, refundings or
refinancings thereof and any indentures or credit facilities or commercial paper facilities with
banks or other institutional lenders or investors 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 borrowable thereunder or
alters the maturity thereof (provided that such increase in borrowings is permitted under
Section 4.09 hereof).


 


-25-









 






“Senior Indebtedness” means:




(1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior
Credit Facilities, the Existing Senior Secured Notes, the Existing Senior Notes or
Notes and related Guarantees (including interest accruing on or after the filing of any
petition in bankruptcy or similar proceeding or for reorganization of the Issuer or any
Guarantor (at the rate provided for in the documentation with respect thereto, regardless of
whether or not a claim for post-filing interest is allowed in such proceedings)), and any
and all other fees, expense reimbursement obligations, indemnification amounts, penalties,
and other amounts (whether existing on the Issue Date or thereafter created or incurred) and
all obligations of the Issuer or any Guarantor to reimburse any bank or other Person in
respect of amounts paid under letters of credit, acceptances or other similar instruments;




(2) all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in
the Senior Credit Facilities) or any Affiliate of such Lender (or any Person that was a
Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to
such Hedging Obligation was entered into), provided that such Hedging Obligations
are permitted to be incurred under the terms of this Indenture;




(3) any other Indebtedness of the Issuer or any Guarantor permitted to be incurred
under the terms of this Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity with or subordinated in right of payment
to the Senior Subordinated Notes or any related Guarantee; and




(4) all Obligations with respect to the items listed in the preceding clauses (1), (2)
and (3);



provided, however, that Senior Indebtedness shall not include:




(a) any obligation of such Person to the Issuer or any of its Subsidiaries;




(b) any liability for federal, state, local or other taxes owed or owing by such
Person;




(c) any accounts payable or other liability to trade creditors arising in the ordinary
course of business;




(d) any Indebtedness or other Obligation of such Person which is subordinate or junior
in any respect to any other Indebtedness or other Obligation of such Person; or




(e) that portion of any Indebtedness which at the time of incurrence is incurred in
violation of this Indenture.



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



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



“Similar Business” means any business conducted or proposed to be conducted by the
Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental or ancillary thereto.


 


-26-









 





“Sponsor Management Agreement” means the management agreement between certain
of the management companies associated with the Investors and SunGard as in effect on the
Issue Date.




“Subordinated Indebtedness” means, with respect to the Notes,




(1) any Indebtedness of the Issuer which is by its terms subordinated in right of
payment to the Notes, and




(2) any Indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Notes




“Subsidiary” means, with respect to any Person:




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




(2) any partnership, joint venture, limited liability company or similar entity of
which




(x) more than 50% of the capital accounts, distribution rights, total equity
and voting interests or general or limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form of
membership, general, special or limited partnership or otherwise, and




(y) such Person or any Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.



“Total Assets” means the total assets of the Issuer and its Restricted Subsidiaries on
a consolidated basis, as shown on the most recent balance sheet of the Issuer or such other Person
as may be expressly stated.



“Transaction” means the transactions contemplated by the Transaction Agreement, the
issuance of the Existing 91/8% Notes and the Existing Senior Subordinated Notes, the granting of
Liens on the Existing Senior Secured Notes, fundings under any Receivables Facility and borrowings
under the Senior Credit Facilities as in effect on or since August 11, 2005.



“Transaction Agreement” means the Agreement and Plan of Merger, dated as of March 27,
2005 between Solar Capital Corp. and the Company as the same may be amended from time to time prior
to the Issue Date.



“Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the Redemption Date to November 15, 2015; provided,
however, that if the period from the Redemption Date to
November 15, 2015 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be used.


 


-27-









 





“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S.C
§§ 77aaa-77bbbb).



“Trustee” means The Bank of New York Mellon, as trustee, until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.



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



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




“Unrestricted Subsidiary” means:




(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted
Subsidiary (as designated by the Issuer, as provided below); and




(2) any Subsidiary of an Unrestricted Subsidiary.



The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or
holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than solely
any Subsidiary of the Subsidiary to be so designated); provided that




(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all Equity Interests
having ordinary voting power for the election of directors or Persons performing a similar
function are owned, directly or indirectly, by the Issuer;




(2) such designation complies with Section 4.07 hereof; and




(3) each of:




(a) the Subsidiary to be so designated; and




(b) its Subsidiaries




has not at the time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness
pursuant to which the lender has recourse to any of the assets of the Issuer or any
Restricted Subsidiary.


 


-28-









 





The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that, immediately after giving effect to such designation, no Default shall have
occurred and be continuing and either:




(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof; or




(2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries
would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries
immediately prior to such designation,



in each case on a pro forma basis taking into account such designation.



Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly
filing with the Trustee a copy of the resolution of the board of directors of the Issuer or any
committee thereof giving effect to such designation and an Officer’s Certificate certifying that
such designation complied with the foregoing provisions.




“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,
Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by
dividing:




(1) the sum of the products of the number of years from the date of determination to
the date of each successive scheduled principal payment of such Indebtedness or redemption
or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by
the amount of such payment; by




(2) the sum of all such payments.



“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the
outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.



Section 1.02 Other Definitions.



	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	“Acceptable Commitment”
	 	 	4.10	 
	“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	 
	“Covenant Defeasance”
	 	 	8.03	 
	“Covenant Suspension Event”
	 	 	4.16	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 






 


-29-









 





	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Note Register”
	 	 	2.03	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Pari Passu Indebtedness”
	 	 	4.10	 
	“Paying Agent”
	 	 	2.03	 
	“Purchase Date”
	 	 	3.09	 
	“Redemption Date”
	 	 	3.07	 
	“Refinancing Indebtedness”
	 	 	4.09	 
	“Refunding Capital Stock”
	 	 	4.07	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 
	“Second Commitment”
	 	 	4.10	 
	“Successor Company”
	 	 	5.01	 
	“Successor Person”
	 	 	5.01	 
	“Suspended Covenant”
	 	 	4.16	 
	“Treasury Capital Stock”
	 	 	4.07	 






Section 1.03 Incorporation by Reference of Trust Indenture Act.



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




The following Trust Indenture Act terms used in this Indenture have the following meanings:




“indenture securities” means the Notes;




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




“indenture to be qualified” means this Indenture;




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




“obligor” on the Notes and the Guarantees means the Issuer and the Guarantors,
respectively, and any successor obligor upon the Notes and the Guarantees, respectively.



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



Section 1.04 Rules of Construction.




Unless the context otherwise requires:




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




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


 


-30-









 






(c) “or” is not exclusive;




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




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




(f) provisions apply to successive events and transactions;




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




(h) unless the context otherwise requires, any reference to an “Article,” “Section” or
“clause” refers to an Article, Section or clause, as the case may be, of this Indenture; and




(i) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not any particular Article, Section, clause or other
subdivision.



Section 1.05 Acts of Holders.



(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Issuer. Proof of execution of any such instrument or
of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient
for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee
and the Issuer, if made in the manner provided in this Section 1.05.



(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by or on behalf of any legal entity other than an individual, such certificate or affidavit
shall also constitute proof of the authority of the Person executing the same. 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 that the Trustee deems sufficient.




(c) The ownership of Notes shall be proved by the Note Register.



(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.


 


-31-









 





(e) The Issuer may, in the circumstances permitted by the Trust Indenture Act, set a
record date for purposes of determining the identity of Holders entitled to give any request,
demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or
consent to any action by vote or consent authorized or permitted to be given or taken by Holders.
Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder
made by any Person in respect of any such action, or in the case of any such vote, prior to such
vote, any such record date shall be the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the Trustee prior to such
solicitation.



(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard
to any particular Note may do so with regard to all or any part of the principal amount of such
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. Any notice given or action taken by a
Holder or its agents with regard to different parts of such principal amount pursuant to this
paragraph shall have the same effect as if given or taken by separate Holders of each such
different part.



(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the
Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note
may provide its proxy or proxies to the beneficial owners of interests in any such Global Note
through such depositary’s standing instructions and customary practices.



(h) The Issuer may fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such
depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided in this
Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on
such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice, consent, waiver or
other action, whether or not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action shall be valid or
effective if made, given or taken more than 90 days after such record date.



ARTICLE 2




THE NOTES




Section 2.01 Form and Dating; Terms.



(a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of
its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000
in excess thereof.



(b) Global Notes. Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). 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). The Global Note shall represent such of the outstanding Notes as shall be
specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and shall
provide that it shall represent up to the aggregate principal
amount of Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or increased, as applicable,
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 Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.


 


-32-









 





(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall
be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited
on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the
accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the
Issuer and authenticated by the Trustee as hereinafter provided. The Restricted Period shall be
terminated upon the receipt by the Trustee of:




(i) a written certificate from the Depositary, together with copies of certificates
from Euroclear and Clearstream (if available) certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted Period pursuant to
another exemption from registration under the Securities Act and who shall take delivery of
a beneficial ownership interest in a 144A Global Note bearing a Private Placement Legend,
all as contemplated by Section 2.06(b) hereof); and




(ii) an Officer’s Certificate from the Issuer.



Following the termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent
Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the
Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global
Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation
S Permanent Global Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.



(d) Terms. The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is unlimited.



The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuer, the Guarantors and the 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 Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.



The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer as
provided in Section 4.10 hereof or a Change of Control Offer as provided in Section 4.14 hereof.
The Notes shall not be redeemable, other than as provided in Article 3.



Additional Notes ranking pari passu with the Initial Notes may be created and issued from time
to time by the Issuer without notice to or consent of the Holders and shall be consolidated with
and form a single class with the Initial Notes and shall have the same terms as to status,
redemption or
otherwise as the Initial Notes; provided that the Issuer’s ability to issue Additional
Notes shall be subject to the Issuer’s compliance with Section 4.09 hereof.


 


-33-









 





(e) 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 Clearstream Banking” and “Customer Handbook” of Clearstream shall
be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes that are held by Participants through Euroclear or
Clearstream.



Section 2.02 Execution and Authentication.



At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile
signature.



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



A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose until authenticated substantially in the form of Exhibit A attached hereto, as
the case may be, by the manual signature of the Trustee. The signature shall be conclusive
evidence that the Note has been duly authenticated and delivered under this Indenture.



On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an “Authentication
Order”), authenticate and deliver the Initial Notes. In addition, at any time, from time to
time, the Trustee shall upon an Authentication Order authenticate and deliver any Additional Notes
and Exchange Notes for an aggregate principal amount specified in such Authentication Order for
such Additional Notes or Exchange Notes issued hereunder.



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



Section 2.03 Registrar and Paying Agent.



The Issuer shall maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented
for payment (“Paying Agent”). The Registrar shall keep a register of the Notes (“Note
Register”) and of their transfer and exchange. The Issuer 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 Issuer may
change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify
the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the
Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall
act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.



The Issuer initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.



The Issuer initially appoints the Trustee to act as the Paying Agent and Registrar for the
Notes and to act as Custodian with respect to the Global Notes.


 


-34-









 





Section 2.04 Paying Agent to Hold Money in Trust.



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



Section 2.05 Holder Lists.



The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with
Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least two Business Days before each Interest Payment Date and at such other times
as the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the Issuer shall
otherwise comply with Trust Indenture Act Section 312(a).



Section 2.06 Transfer and Exchange.



(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this
Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee
of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A
beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the
Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for
such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Issuer within 120 days or (ii) there
shall have occurred and be continuing a Default with respect to the Notes. Upon the occurrence of
any of the preceding events in (i) or (ii) 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 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for,
or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note,
except for Definitive Notes issued subsequent to any of the preceding events in (i) or (ii) above
and pursuant to Section 2.06(c) hereof. A Global Note may not be exchanged for another Note other
than as provided in this Section 2.06(a); provided, however, beneficial interests
in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.


 


-35-









 





(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;
provided, however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Temporary Global Note may not be made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an 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. No written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.06(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 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) 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; provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global
Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903. Upon consummation of an
Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof, the requirements of
this Section 2.06(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 Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.




(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 2.06(b)(ii) hereof and the Registrar
receives the following:




(A) if the transferee will 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




(B) if the transferee will take delivery in the form of a beneficial interest
in the 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.


 


-36-









 






(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) hereof and:




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




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




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


 


-37-









 





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



(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.
If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the
occurrence of any of the events in paragraph (i) or (ii) of Section 2.06(a) hereof and 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 substantially 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, a certificate substantially in the form of 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, a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (2) thereof;




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




(E) if such beneficial interest is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (3)(b) thereof; or




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



the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall
authenticate and mail to the Person designated in the instructions a Definitive Note in the
applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.



(ii) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S
Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who
takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.


 


-38-









 





(iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive
Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of
the events in subsection (i) or (ii) of Section 2.06(a) hereof and if:




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




(B) such transfer is effected pursuant to 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 an Unrestricted Definitive Note, a
certificate from such holder substantially 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 an Unrestricted Definitive Note, a certificate from such
holder substantially 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), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.



(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of
any of the events in subsection (i) or (ii) of Section 2.06(a) hereof and satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Issuer shall execute and the Trustee shall authenticate and mail to the Person designated
in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through instructions from or through the
Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive
Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private
Placement Legend.


 


-39-









 





(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 Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon
receipt by the Registrar of the following documentation:




(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for
a beneficial interest in a Restricted Global Note, a certificate from such Holder
substantially 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, a certificate substantially in the form of 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, a certificate substantially in
the form of 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 substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof;




(E) if such Restricted Definitive Note is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (3)(b) thereof; or




(F) if such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (3)(c) thereof,



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



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




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




(B) such transfer is effected pursuant to 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


 


-40-









 






(D) the Registrar receives the following:




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




(2) if the Holder of such Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder substantially 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), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained 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 2.06(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.



(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.



If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note
has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of 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
2.06(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 2.06(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 will be made pursuant to a QIB in accordance with Rule
144A, then the transferor must deliver a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (1) thereof;


 


-41-









 






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




(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
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 Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuer;




(B) any such transfer is effected pursuant to 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 Notes for an Unrestricted Definitive Note, a certificate from
such Holder substantially 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 Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder
substantially 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), if the Registrar so
requests, 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.




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


 


-42-









 





(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that certify in the
applicable Letters of Transmittal or through an Agent’s Message through DTC Automated Tender Offer
Program that (x) they are not Broker-Dealers, (y) they are not participating in a distribution of
the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the Issuer, and
accepted for exchange in the Exchange Offer and (ii) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive Notes tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal that (x) they are not
Broker-Dealers, (y) they are not participating in a distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144) of the Issuer, and accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Issuer shall execute and the Trustee shall authenticate and mail to the Persons designated by
the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the applicable
principal amount. Any Notes that remain outstanding after the consummation of the Exchange Offer,
and Exchange Notes issued in connection with the Exchange Offer, shall be treated as a single class
of securities under this Indenture.



(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.




(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:




“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT
HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE
144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL
ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON


 


-43-









 






REGULATION S],
ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
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 TO NON-U.S. PERSONS 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 NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT
IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS
ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS
IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]




BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH
HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), ANY PLAN, ACCOUNT OR OTHER ARRANGEMENT
THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S.
OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE
CODE (“SIMILAR LAWS”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO
INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE
ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR
VIOLATION UNDER ANY APPLICABLE SIMILAR LAW, AND (B) THE HOLDER WILL NOT SELL OR
OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST THEREIN OTHERWISE THAN TO A
PURCHASER OR TRANSFEREE THAT IS DEEMED TO MAKE THESE SAME REPRESENTATIONS,
WARRANTIES AND AGREEMENTS WITH RESPECT TO ITS ACQUISITION AND HOLDING OF SUCH SECURITY AND ANY INTEREST THEREIN.”


 


-44-









 









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



(ii) Global Note Legend. Each Global Note shall bear 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 SECTION 2.06(h) OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”



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



“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).”


 


-45-









 





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




(i) General Provisions Relating to Transfers and Exchanges.



(i) To permit registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon 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 Issuer may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05
hereof).



(iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.



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



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



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



(vii) Upon surrender for registration of transfer of any Note at the office or agency of the
Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or transferees, one or more
replacement Notes of any authorized denomination or denominations of a like aggregate principal
amount.


 


-46-









 





(viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination or denominations of a like aggregate principal amount upon surrender of the Notes to
be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail,
the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled
to in accordance with the provisions of Section 2.02 hereof.



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



Section 2.07 Replacement Notes.



If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the
Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of
any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee
or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee
may charge for their expenses in replacing a Note.



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



Section 2.08 Outstanding Notes.



The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.



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



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



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


 


-47-









 





Section 2.09 Treasury Notes.



In determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of
the Issuer, shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such
direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or
any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.



Section 2.10 Temporary Notes.



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



Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to
all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this
Indenture.



Section 2.11 Cancellation.



The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or
the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Issuer. The Issuer may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.



Section 2.12 Defaulted Interest.



If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such defaulted interest as provided in this Section 2.12. The Trustee 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. The
Trustee shall promptly notify the Issuer of such special record date. At least 15 days before the
special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the
name and at the expense of the Issuer) shall mail or cause to be mailed, first-class postage
prepaid, or delivered by electronic transmission to each Holder a notice at his or her address as
it appears in the Note Register that states the special record date, the related payment date and
the amount of such interest to be paid.


 


-48-









 





Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.



Section 2.13 CUSIP Numbers.



The Issuer in issuing the Notes may use CUSIP numbers (if then generally in use) and, if so,
the 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 Notes or as contained in any notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Notes, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will as promptly as
practicable notify the Trustee of any change in the CUSIP numbers.



ARTICLE 3




REDEMPTION




Section 3.01 Notices to Trustee.



If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the
Trustee, at least 2 Business Days before notice of redemption is required to be mailed or delivered
by electronic transmission or caused to be mailed or delivered by electronic transmission to
Holders pursuant to Section 3.03 hereof but not more than 60 days before a redemption date, an
Officer’s Certificate setting forth (i) the paragraph or subparagraph of such Note and/or Section
of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of the Notes to be redeemed and (iv) the redemption price.



Section 3.02 Selection of Notes to Be Redeemed or Purchased.



If less than all of the Notes, as the case may be, are to be redeemed or purchased in an offer
to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (a) if the
Notes are listed on any national securities exchange, in compliance with the requirements of the
principal national securities exchange on which the Notes are listed, (b) on a pro rata basis to
the extent practicable or (c) by lot or by such other similar method in accordance with the
procedures of DTC. In the event of partial redemption or purchase by lot, the particular Notes to
be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 30 nor
more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.



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


 


-49-









 





Section 3.03 Notice of Redemption.



Subject to Section 3.09 hereof, the Issuer shall mail or cause to be mailed by first-class
mail or delivered by electronic transmission notices of redemption at least 30 days but not more
than 60 days before the redemption date to each Holder of Notes to be redeemed at such Holder’s
registered address or otherwise in accordance with the procedures of DTC, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice is issued in
connection with Article 8 or Article 11 hereof. Except as set forth in Section 3.07(b) hereof,
notices of redemption may not be conditional.




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




(a) the redemption date;




(b) the redemption price;




(c) if any Note is to be redeemed in part only, the portion of the principal amount of
that Note that is to be redeemed and that, after the redemption date upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed portion of the
original Note representing the same indebtedness to the extent not redeemed will be issued
in the name of the Holder of the Notes upon cancellation of the original Note;




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




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




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




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




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




(i) if in connection with a redemption pursuant to Section 3.07(b) hereof, any
condition to such redemption.



At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense; provided that the Issuer shall have delivered to the Trustee, at least
2 Business Days before notice of redemption is required to be mailed or caused to be mailed to
Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee),
an Officer’s Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.



Section 3.04 Effect of Notice of Redemption.



Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price
(except as provided for in Section 3.07(b)). The notice, if mailed in a manner herein provided,
shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the Holder of any Note
designated for redemption in whole or in part shall not affect the validity of the proceedings for
the redemption of any other Note. Subject to Section 3.05 hereof, on and after the redemption
date, interest ceases to accrue on Notes or portions of Notes called for redemption.


 


-50-









 





Section 3.05 Deposit of Redemption or Purchase Price.



Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued and unpaid interest (including Additional Interest, if any) on all
Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly
return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in
excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on,
all Notes to be redeemed or purchased.



If the Issuer complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date
but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the
redemption or purchase date shall be paid to the Person in whose name such Note was registered at
the close of business on such Record Date. If any Note called for redemption or purchase shall not
be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply
with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and to the extent lawful on any interest accrued to
the redemption or purchase date not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.



Section 3.06 Notes Redeemed or Purchased in Part.



Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the
Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the
same indebtedness to the extent not redeemed or purchased; provided that each new Note will
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is
understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication
Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to
authenticate such new Note.



Section 3.07 Optional Redemption.



(a) At any time prior to November 15, 2015, the Issuer may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail or delivered
by electronic transmission to the registered address of each Holder of Notes, at a redemption price
equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest and Additional Interest, if any, to the date of redemption (the
“Redemption Date”), subject to the rights of Holders of Notes on the relevant Record Date
to receive interest due on the relevant Interest Payment Date.


 


-51-









 





(b) Until November 15, 2013, the Issuer may, at its option, on one or more occasions redeem up
to 35% of the aggregate principal amount of Notes at a redemption price equal to 107.625% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon and Additional
Interest, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date, with the net
cash proceeds of one or more Equity Offerings; provided that at least 50% of the sum of the
aggregate principal amount of Notes originally issued under this Indenture and any Additional Notes
issued under this Indenture after the Issue Date remains outstanding immediately after the
occurrence of each such redemption; provided further that each such redemption
occurs within 90 days of the date of closing of each such Equity Offering.



(c) Except pursuant to clause (a) or (b) of this Section 3.07, the Notes will not be
redeemable at the Issuer’s option prior to November 15, 2015.



(d) On and after November 15, 2015, the Issuer may redeem the Notes, in whole or in part, upon
not less than 30 nor more than 60 days’ prior notice by first-class mail, postage prepaid, or by
electronic transmission with a copy to the Trustee, to each Holder of Notes at the address of such
Holder appearing in the security register, at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of Notes of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, if redeemed during the twelve-month period beginning on November 15, of each
of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2015
	 	 	103.813	%
	2016
	 	 	102.542	%
	2017
	 	 	101.271	%
	2018 and thereafter
	 	 	100.000	%






(e) Any notice of redemption may be subject to one or more conditions precedent, including,
but not limited to, completion of an Equity Offering or other corporate transaction.



(f) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.



Section 3.08 Mandatory Redemption.



The Issuer shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.



Section 3.09 Offers to Repurchase by Application of Excess Proceeds.



(a) In the event that, pursuant to Section 4.10 hereof, the Issuer shall be required to
commence an Asset Sale Offer, it shall follow the procedures specified below.



(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer
Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer
Amount”) to the purchase of Notes and, if required, Pari Passu Indebtedness (on a pro rata
basis, if applicable), or, if less than the Offer Amount has been tendered, all Notes and Pari
Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.


 


-52-









 





(c) If the Purchase Date is on or after a Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest and Additional Interest, if any, up to
but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at
the close of business on such Record Date, and no additional interest shall be payable to Holders
who tender Notes pursuant to the Asset Sale Offer.



(d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, by first-class mail,
or deliver by electronic transmission, a notice to each of the Holders, with a copy to the Trustee.
The notice shall contain all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and
holders of Pari Passu Indebtedness. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:




(i) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section
4.10 hereof and the length of time the Asset Sale Offer shall remain open;




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




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




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




(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in integral multiples of $2,000 only;




(vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer,
the Depositary, if appointed by the Issuer, 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 Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;




(viii) that, if the aggregate principal amount of Notes and Pari Passu Indebtedness
surrendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the
Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis based on the
accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered
(with such adjustments as may be deemed appropriate by the Trustee so that only Notes in
denominations of $2,000, or integral multiples thereof, shall be purchased); and




(ix) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer) representing the same indebtedness to the extent not
repurchased.



(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for
payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof
validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all
Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly
accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or
portions thereof so tendered.


 


-53-









 





(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or
deliver to each tendering Holder an amount equal to the purchase price of the Notes properly
tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly
issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and
mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being
understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel
or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new
Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing
the same indebtedness to the extent not repurchased; provided, that each such new Note
shall be in a principal amount of $2,000 or an integral multiple thereof. Any Note not so accepted
shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall
publicly announce the results of the Asset Sale Offer on or as soon as practicable after the
Purchase Date.



Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase
pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01
through 3.06 hereof.



ARTICLE 4




COVENANTS




Section 4.01 Payment of Notes.



The Issuer shall pay or cause to be paid the principal of, premium, if any, Additional
Interest, if any, and interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, Additional Interest, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Issuer or a Subsidiary, holds as of noon
Eastern Time on the due date money deposited by the Issuer in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest then due.



The Issuer 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.



The Issuer shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; 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.



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


 


-54-









 





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



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



Section 4.03 Reports and Other Information.



(a) Notwithstanding that the Issuer may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Issuer shall file with the SEC (and make available to the Trustee and
Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the
Issuer files them with the SEC) from and after the Issue Date,




(1) within 90 days (or any other time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-K by a
non-accelerated filer) after the end of each fiscal year, annual reports on Form 10-K, or
any successor or comparable form, containing the information required to be contained
therein, or required in such successor or comparable form;




(2) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, reports on Form 10-Q containing all quarterly information that would be
required to be contained in Form 10-Q, or any successor or comparable form;




(3) promptly from time to time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K, or any successor or comparable form; and




(4) any other information, documents and other reports that the Issuer would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;



in each case, in a manner that complies in all material respects with the requirements specified in
such form; provided that the Issuer shall not be so obligated to file such reports with the
SEC if the SEC does not permit such filing, in which event the Issuer shall make available such
information to prospective purchasers of Notes, in addition to providing such information to the
Trustee and the Holders of the Notes, in each case within 15 days after the time the Issuer would
be required to file such information with the SEC, if it were subject to Section 13 or 15(d) of the
Exchange Act. In addition, to the extent not satisfied by the foregoing, the Issuer shall agree
that, for so long as any Notes are outstanding, it shall furnish to Holders and to securities
analysts and prospective investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.



(b) In the event that any direct or indirect parent company of the Issuer becomes a guarantor
of the Notes, the Issuer may satisfy its obligations under this Section 4.03 with respect to
financial information relating to the Issuer by furnishing financial information relating to such
parent; provided
that the same is accompanied by consolidating information that explains in reasonable detail
the differences between the information relating to such parent, on the one hand, and the
information relating to the Issuer and its Restricted Subsidiaries on a standalone basis, on the
other hand.


 


-55-









 





Section 4.04 Compliance Certificate.



(a) The Issuer and each Guarantor (to the extent that such Guarantor is so required under the
Trust Indenture Act) shall deliver to the Trustee, within 90 days after the end of each fiscal year
ending after the Issue Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the activities of the
Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officer with a view to determining whether the Issuer has kept,
observed, performed and fulfilled its obligations under this Indenture, and further stating, as to
such Officer signing such certificate, that to the best of his or her knowledge the Issuer has
kept, observed, performed and fulfilled each and every condition and covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions,
covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all
such Defaults of which he or she may have knowledge and what action the Issuer is taking or
proposes to take with respect thereto).



(b) When any Default has occurred and is continuing under this Indenture, or if the Trustee or
the holder of any other evidence of Indebtedness of the Issuer or any Subsidiary gives any notice
or takes any other action with respect to a claimed Default, the Issuer shall promptly (which shall
be no more than five (5) Business Days) deliver to the Trustee by registered or certified mail or
delivered by electronic transmission an Officer’s Certificate specifying such event and what action
the Issuer proposes to take with respect thereto.



Section 4.05 Taxes.



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



Section 4.06 Stay, Extension and Usury Laws.



The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so)
that they 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
Issuer and each of the Guarantors (to the extent that they 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 Trustee, but
shall suffer and permit the execution of every such power as though no such law has been enacted.


 


-56-









 





Section 4.07 Limitation on Restricted Payments.



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




(I) declare or pay any dividend or make any payment or distribution on account of the
Issuer’s, or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation other than:




(A) dividends or distributions by the Issuer payable solely in Equity Interests
(other than Disqualified Stock) of the Issuer; or




(B) dividends or distributions by a Restricted Subsidiary so long as, in the
case of any dividend or distribution payable on or in respect of any class or series
of securities issued by a Restricted Subsidiary other than a Wholly-Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata
share of such dividend or distribution in accordance with its Equity Interests in
such class or series of securities;




(II) purchase, redeem, defease or otherwise acquire or retire for value any Equity
Interests of the Issuer or any direct or indirect parent of the Issuer, including in
connection with any merger or consolidation;




(III) make any principal payment on, or redeem, repurchase, defease or otherwise
acquire or retire for value in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:




(A) Indebtedness permitted under clauses (7) and (8) of Section 4.09(b) hereof;
or




(B) the purchase, repurchase or other acquisition of Subordinated Indebtedness
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase or acquisition; or




(IV) make any Restricted Investment



(all such payments and other actions set forth in clauses (I) through (IV) above (other than any
exception thereto) being collectively referred to as “Restricted Payments”), unless, at the
time of such Restricted Payment:




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




(2) immediately after giving effect to such transaction on a pro forma basis, the
Issuer could incur $1.00 of additional Indebtedness under Section 4.09(a) hereof; and




(3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after August 11, 2005 (including
Restricted Payments permitted by clauses (1), (2) (with respect to the payment of dividends
on Refunding Capital Stock pursuant to clause (b) thereof only), (6)(c), (9) and (14) of
Section 4.07(b) hereof, but excluding all other Restricted Payments permitted by Section
4.07(b) hereof), is less than the sum of (without duplication):




(a) 50% of the Consolidated Net Income of the Issuer for the period (taken as
one accounting period) beginning July 1, 2005, to the end of the Issuer’s most
recently ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment, or, in the case such Consolidated Net Income
for such period is a deficit, minus 100% of such deficit; plus


 


-57-









 






(b) 100% of the aggregate net cash proceeds and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other property
received by the Issuer since immediately after August 11, 2005 (other than net cash
proceeds to the extent such net cash proceeds have been used to incur Indebtedness,
Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section 4.09(b)
hereof) from the issue or sale of:




(i) (A) Equity Interests of the Issuer, including Treasury Capital
Stock, but excluding cash proceeds and the fair market value, as determined
in good faith by the Issuer, of marketable securities or other property
received from the sale of:




(x) Equity Interests to employees, directors or consultants of
the Issuer, any direct or indirect parent company of the Issuer and
the Issuer’s Subsidiaries after the Issue Date to the extent such
amounts have been applied to Restricted Payments made in accordance
with clause (4) of Section 4.07(b) hereof; and




(y) Designated Preferred Stock




and (B) to the extent such net cash proceeds are actually contributed to the
Issuer, Equity Interests of the Issuer’s direct or indirect parent companies
(excluding contributions of the proceeds from the sale of Designated
Preferred Stock of such companies or contributions to the extent such
amounts have been applied to Restricted Payments made in accordance with
clause (4) of Section 4.07(b) hereof); or




(ii) debt securities of the Issuer that have been converted into or
exchanged for such Equity Interests of the Issuer;




provided, however, that this clause (b) shall not include the
proceeds from (W) Refunding Capital Stock, (X) Equity Interests or convertible debt
securities of the Issuer sold to a Restricted Subsidiary, as the case may be, (Y)
Disqualified Stock or debt securities that have been converted into Disqualified
Stock or (Z) Excluded Contributions; plus




(c) 100% of the aggregate amount of cash and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other property
contributed to the capital of the Issuer following August 11, 2005 (other than
(i) net cash proceeds to the extent such net cash proceeds have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of
Section 4.09(b) hereof, (ii) contributions from Restricted Subsidiary or (iii) any
Excluded Contributions); plus




(d) 100% of the aggregate amount received in cash and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other property
received by the Issuer or any Restricted Subsidiary by means of:




(i) the sale or other disposition (other than to the Issuer or a
Restricted Subsidiary) of Restricted Investments made by the Issuer or its
Restricted Subsidiaries and repurchases and redemptions of such Restricted
Investments from the Issuer or its Restricted Subsidiaries and repayments of
loans or advances, and releases of guarantees, which constitute Restricted
Investments by
the Issuer or its Restricted Subsidiaries, in each case after August
11, 2005; or


 


-58-









 






(ii) the sale (other than to the Issuer or a Restricted Subsidiary) of
the stock of an Unrestricted Subsidiary or a distribution or dividend from
an Unrestricted Subsidiary (other than in each case to the extent the
Investment in such Unrestricted Subsidiary was made by the Issuer or a
Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) hereof or to
the extent such Investment constituted a Permitted Investment) after August
11, 2005; plus




(e) in the case of the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary after August 11, 2005, the fair market value of the Investment
in such Unrestricted Subsidiary, as determined by the Issuer in good faith or if, in
the case of an Unrestricted Subsidiary, such fair market value may exceed
$150.0 million, in writing by an Independent Financial Advisor, at the time of the
redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary other than
an Unrestricted Subsidiary to the extent the Investment in such Unrestricted
Subsidiary was made by the Issuer or a Restricted Subsidiary pursuant to clause (7)
of Section 4.07(b) hereof or to the extent such Investment constituted a Permitted
Investment.




(b) The foregoing provisions of Section 4.07(a) hereof shall not prohibit:




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




(2) (a) the redemption, repurchase, retirement or other acquisition of any Equity
Interests (“Treasury Capital Stock”) or Subordinated Indebtedness of the Issuer or
any Equity Interests of any direct or indirect parent company of the Issuer, in exchange
for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Issuer or any direct or indirect parent company of
the Issuer to the extent contributed to the Issuer (in each case, other than any
Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to the
retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was
permitted under clause (6) of this Section 4.07(b), the declaration and payment of dividends
on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which
were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any
direct or indirect parent company of the Issuer) in an aggregate amount per year no greater
than the aggregate amount of dividends per annum that were declarable and payable on such
Treasury Capital Stock immediately prior to such retirement;




(3) the redemption, repurchase, defeasance or other acquisition or retirement of
Subordinated Indebtedness of the Issuer or a Guarantor made by exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the Issuer or a
Guarantor, as the case may be, which is incurred in compliance with Section 4.09 hereof so
long as:




(a) the principal amount of such new Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus any accrued and unpaid interest
on, the Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired for value, plus the amount of any reasonable premium required to be paid
under the terms of the instrument governing the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired and any reasonable fees and expenses
incurred in connection with the issuance of such new Indebtedness;


 


-59-









 






(b) such new Indebtedness is subordinated to the Notes or the applicable
Guarantee at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, defeased, acquired or retired for
value;




(c) such new Indebtedness has a final scheduled maturity date equal to or later
than the final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, defeased, acquired or retired; and




(d) such new Indebtedness has a Weighted Average Life to Maturity equal to or
greater than the remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, defeased, acquired or retired;




(4) a Restricted Payment to pay for the repurchase, retirement or other acquisition or
retirement for value of Equity Interests (other than Disqualified Stock) of the Issuer or
any of its direct or indirect parent companies held by any future, present or former
employee, director or consultant of the Issuer, any of its Subsidiaries or any of its direct
or indirect parent companies pursuant to any management equity plan or stock option plan or
any other management or employee benefit plan or agreement; provided,
however, that the aggregate Restricted Payments made under this clause (4) do not
exceed in any calendar year $25.0 million (which shall increase to $50.0 million subsequent
to the consummation of an underwritten public Equity Offering by the Issuer or any direct or
indirect parent corporation of the Issuer) (with unused amounts in any calendar year being
carried over to succeeding calendar years subject to a maximum (without giving effect to the
following proviso) of $50.0 million in any calendar year (which shall increase to $100.0
million subsequent to the consummation of an underwritten public Equity Offering by the
Issuer or any direct or indirect parent corporation of the Issuer)); provided
further that such amount in any calendar year may be increased by an amount not to
exceed:




(a) the cash proceeds from the sale of Equity Interests (other than
Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer,
Equity Interests of any of the Issuer’s direct or indirect parent companies, in each
case to members of management, directors or consultants of the Issuer, any of its
Subsidiaries or any of its direct or indirect parent companies that occurs after the
Issue Date, to the extent the cash proceeds from the sale of such Equity Interests
have not otherwise been applied to the payment of Restricted Payments by virtue of
clause (3) of Section 4.07(a) hereof; plus




(b) the cash proceeds of key man life insurance policies received by the Issuer
or its Restricted Subsidiaries after the Issue Date; less




(c) the amount of any Restricted Payments previously made with the cash
proceeds described in clauses (a) and (b) of this clause (4);




and provided further that cancellation of Indebtedness owing to the Issuer
from members of management of the Issuer, any of the Issuer’s direct or indirect parent
companies or any of the Issuer’s Restricted Subsidiaries in connection with a repurchase of
Equity Interests of the Issuer or any of its direct or indirect parent companies will not be
deemed to constitute a Restricted Payment for purposes of this Section 4.07 or any other
provision of this Indenture;




(5) the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries issued in accordance
with Section 4.09 hereof to the extent such dividends are included in the definition of
“Fixed Charges”;


 


-60-









 






(6) (a) the declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the
Issue Date;




(b) the declaration and payment of dividends to a direct or indirect parent company of
the Issuer, the proceeds of which will be used to fund the payment of dividends to holders
of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such
parent corporation issued after the Issue Date, provided that the amount of
dividends paid pursuant to this clause (b) shall not exceed the aggregate amount of cash
actually contributed to the Issuer from the sale of such Designated Preferred Stock; or




(c) the declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon pursuant to clause
(2) of this Section 4.07(b);




provided, however, in the case of each of (a), (b) and (c) of this clause
(6), that for the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such Designated
Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is
Preferred Stock, after giving effect to such issuance or declaration on a pro forma basis,
the Issuer and its Restricted Subsidiaries on a consolidated basis would have had a Fixed
Charge Coverage Ratio of at least 2.00 to 1.00;




(7) Investments in Unrestricted Subsidiaries having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (7) that are at the
time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the
extent the proceeds of such sale do not consist of cash or marketable securities, not to
exceed 2.0% of Total Assets at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to subsequent
changes in value);




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




(9) the declaration and payment of dividends on the Issuer’s common stock (or the
payment of dividends to any direct or indirect parent entity to fund a payment of dividends
on such entity’s common stock), following the first public offering of the Issuer’s common
stock or the common stock of any of its direct or indirect parent companies after the Issue
Date, of up to 6% per annum of the net cash proceeds received by or contributed to the
Issuer in or from any such public offering, other than public offerings with respect to the
Issuer’s common stock registered on Form S-8 and other than any public sale constituting an
Excluded Contribution;




(10) Restricted Payments in an amount that does not in the aggregate exceed all
Excluded Contributions made since the Issue Date;




(11) other Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (11) not to exceed the greater of (x)
$525.0 million or (y) 1.875% of Total Assets at the time made;




(12) distributions or payments of Receivables Fees;




(13) any Restricted Payment used to fund the Transaction and the fees and expenses
related thereto or owed to Affiliates, in each case to the extent permitted by Section
4.11 hereof;


 


-61-









 






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




(15) the declaration and payment of dividends by the Issuer to, or the making of loans
to, any direct or indirect parent in amounts required for any direct or indirect parent
companies to pay, in each case without duplication,




(a) franchise and excise taxes and other fees, taxes and expenses, in each case
to the extent required to maintain their corporate existence;




(b) federal, state, foreign and local income taxes, to the extent such income
taxes are attributable to the income of the Issuer and its Restricted Subsidiaries
and, to the extent of the amount actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the extent attributable to
the income of such Unrestricted Subsidiaries; provided that in each case the
amount of such payments in any fiscal year does not exceed the amount that the
Issuer and its Restricted Subsidiaries would be required to pay in respect of
federal, state, foreign and local taxes for such fiscal year were the Issuer, its
Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described
above) to pay such taxes separately from any such parent entity;




(c) customary salary, bonus and other benefits payable to officers and
employees of any direct or indirect parent company of the Issuer to the extent such
salaries, bonuses and other benefits are attributable to the ownership or operation
of the Issuer and its Restricted Subsidiaries;




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




(e) fees and expenses other than to Affiliates of the Issuer related to any
unsuccessful equity or debt offering of such parent entity; and




(16) the distribution, by dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary by Unrestricted Subsidiaries
(other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash
Equivalents);



provided, however, that at the time of, and after giving effect to, any Restricted
Payment permitted under clauses (11) and (16) of this Section 4.07(b), no Default shall have
occurred and be continuing or would occur as a consequence thereof.



(c) The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary
except pursuant to the last sentence of the definition of “Unrestricted Subsidiary.” For purposes
of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments
by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments in an amount determined as set forth in the
last sentence of the definition of “Investment.” Such designation shall be permitted only if a
Restricted Payment in such
amount would be permitted at such time, whether pursuant to Section 4.07(a) hereof or under
clause (7), (10), (11) or (16) of Section 4.07(b) hereof, or pursuant to the definition of
“Permitted Investments,” and if such Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.


 


-62-









 





Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.



(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries that are not
Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary to:




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




(B) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries;




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




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



(b) The restrictions in Section 4.08(a) hereof shall not apply to encumbrances or restrictions
existing under or by reason of:




(1) contractual encumbrances or restrictions in effect on the Issue Date, including
pursuant to the Senior Credit Facilities and related Hedging Obligations and the related
documentation and pursuant to the indentures governing the Existing Senior Notes, the
Existing Senior Secured Notes and the Existing Senior Subordinated Notes and the related
documentation;




(2) this Indenture and the Notes;




(3) purchase money obligations for property acquired in the ordinary course of business
that impose restrictions of the nature discussed in clause (3) of Section 4.08(a) hereof on
the property so acquired;




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




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




(6) contracts for the sale of assets, including customary restrictions with respect to
a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary;




(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09
hereof and Section 4.12 hereof that limit the right of the debtor to dispose of the assets
securing such Indebtedness;


 


-63-









 






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




(9) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date pursuant to the provisions of Section
4.09 hereof;




(10) customary provisions in joint venture agreements and other similar agreements
relating solely to such joint venture;




(11) customary provisions contained in leases or licenses of intellectual property and
other agreements, in each case, entered into in the ordinary course of business;




(12) any encumbrances or restrictions of the type referred to in clauses (1), (2) and
(3) of Section 4.08(a) hereof imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (11) of this Section 4.08(b);
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith judgment of the
Issuer, no more restrictive with respect to such encumbrance and other restrictions taken as
a whole than those prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing; and




(13) restrictions created in connection with any Receivables Facility that, in the good
faith determination of the Issuer are necessary or advisable to effect such Receivables
Facility.



Section 4.09 Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock
and Preferred Stock.



(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise (collectively, “incur” and collectively, an
“incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the
Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted
Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided,
however, that the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur Indebtedness
(including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred
Stock, if the Fixed Charge Coverage Ratio on a consolidated basis for the Issuer and its Restricted
Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, 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, and the application of proceeds therefrom had occurred at the beginning
of such four-quarter period.




(b) The provisions of Section 4.09(a) hereof shall not apply to:




(1) the incurrence of Indebtedness under Credit Facilities by the Issuer or any of its
Restricted Subsidiaries and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have
a principal amount equal to the face amount thereof), up to an aggregate principal amount of
$5,750.0 million outstanding at any one time, less up to $1,000.0 million in the
aggregate of mandatory principal payments actually made by the borrower thereunder in
respect of Indebtedness thereunder with Net Proceeds from an Asset Sale or series of related
Asset Sales that constitutes the sale, transfer, conveyance or other disposition of all or
substantially all of a segment (as defined under GAAP) of the Issuer (other than any segment
predominantly composed of assets acquired by the Issuer or its Restricted Subsidiaries
subsequent to the Issue Date);


 


-64-









 






(2) the incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Notes (including any Guarantee) (other than any Additional Notes) and the 2018 Notes;




(3) Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness described in clauses (1) and (2) of this Section
4.09(b)) after giving effect to the use of proceeds set forth in the Offering Memorandum;




(4) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and
Preferred Stock incurred by the Issuer or any of its Restricted Subsidiaries, to finance the
purchase, lease or improvement of property (real or personal) or equipment (other than
software) that is used or useful in a Similar Business, whether through the direct purchase
of assets or the Capital Stock of any Person owning such assets;




(5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’ compensation
claims, or other Indebtedness with respect to reimbursement type obligations regarding
workers’ compensation claims; provided, however, that upon the drawing of
such letters of credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or incurrence;




(6) Indebtedness arising from agreements of the Issuer or its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or a Subsidiary for the purpose of financing such
acquisition; provided, however, that such Indebtedness is not reflected on
the balance sheet of the Issuer, or any of its Restricted Subsidiaries (Contingent
Obligations referred to in a footnote to financial statements and not otherwise reflected on
the balance sheet will not be deemed to be reflected on such balance sheet for purposes of
this clause (6));




(7) Indebtedness of the Issuer to a Restricted Subsidiary; provided that any
such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is expressly
subordinated in right of payment to the Notes; provided further that any
subsequent issuance or transfer of any Capital Stock or any other event which results in the
Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such Indebtedness (except to the Issuer or another
Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such
Indebtedness;




(8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted
Subsidiary; provided that if a Guarantor incurs such Indebtedness owing to a
Restricted Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated
in right of payment to the Guarantee of the Notes of such Guarantor; provided
further that any subsequent transfer of any such Indebtedness (except to the Issuer
or another Restricted Subsidiary) shall be deemed, in each
case, to be an incurrence of such Indebtedness not permitted by this clause (8);


 


-65-









 






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




(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with respect to any Indebtedness
permitted to be incurred pursuant to this Section 4.09, exchange rate risk or commodity
pricing risk;




(11) obligations in respect of performance, bid, appeal and surety bonds and completion
guarantees provided by the Issuer or any of its Restricted Subsidiaries in the ordinary
course of business;




(12) (a) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary equal to
200.0% of the net cash proceeds received by the Issuer since immediately after the Issue
Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the
capital of the Issuer (in each case, other than proceeds of Disqualified Stock or sales of
Equity Interests to the Issuer or any of its Subsidiaries) as determined in accordance with
clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the extent such net cash proceeds or
cash have not been applied pursuant to such clauses to make Restricted Payments or to make
other Investments, payments or exchanges pursuant to such clauses or pursuant to Section
4.07(b) hereof or to make Permitted Investments (other than Permitted Investments specified
in clauses (1) and (3) of the definition thereof) and (b) Indebtedness or Disqualified Stock
of Issuer and Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any
Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or
liquidation preference, which when aggregated with the principal amount and liquidation
preference of all other Indebtedness, Disqualified Stock and Preferred Stock then
outstanding and incurred pursuant to this clause (12)(b), does not at any one time
outstanding exceed $600.0 million (it being understood that any Indebtedness, Disqualified
Stock or Preferred Stock incurred pursuant to this clause (12)(b) shall cease to be deemed
incurred or outstanding for purposes of this clause (12)(b) but shall be deemed incurred for
the purposes of Section 4.09(a) hereof from and after the first date on which the Issuer or
such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or
Preferred Stock under Section 4.09(a) hereof without reliance on this clause (12)(b));




(13) the incurrence or issuance by the Issuer or any Restricted Subsidiary of
Indebtedness, Disqualified Stock or Preferred Stock which serves to refund, refinance,
replace, renew, extend or defease any Indebtedness, Disqualified Stock or Preferred Stock
incurred as permitted under Section 4.09(a) hereof and clauses (2), (3) and (12)(a) of this
Section 4.09(b), this clause (13) and clause (14) of this Section 4.09(b) or any
Indebtedness, Disqualified Stock or Preferred Stock issued to so refund, refinance, replace,
renew, extend or defease such Indebtedness, Disqualified Stock or Preferred Stock including
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums
(including reasonable tender premiums), defeasance costs and fees in connection therewith
(the “Refinancing Indebtedness”) prior to its respective maturity; provided,
however, that such Refinancing Indebtedness:




(A) has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining Weighted Average
Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being
refunded, refinanced, replaced, renewed, extended or defeased,


 


-66-









 






(B) to the extent such Refinancing Indebtedness refinances (i) Indebtedness
subordinated or pari passu to the Notes or any Guarantee thereof, such Refinancing
Indebtedness is subordinated or pari passu to the Notes or the Guarantee at least to
the same extent as the Indebtedness being refinanced or refunded or (ii)
Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be
Disqualified Stock or Preferred Stock, respectively, and




(C) shall not include:




(i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary
of the Issuer that is not a Guarantor that refinances Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or a Guarantor;




(ii) Indebtedness, Disqualified Stock or Preferred Stock of a
Subsidiary of the Issuer, that is not a Guarantor that refinances
Indebtedness, Disqualified Stock or Preferred Stock of a Guarantor; or




(iii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer
or a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock
or Preferred Stock of an Unrestricted Subsidiary;




and provided further that subclause (A) of this clause (13) will not apply
to any refunding or refinancing of any Indebtedness outstanding under any Secured
Indebtedness;




(14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a
Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by
the Issuer or any Restricted Subsidiary or merged into the Issuer or a Restricted Subsidiary
in accordance with the terms of this Indenture; provided that either




(i) such Indebtedness, Disqualified Stock or Preferred Stock:




(a) is not Secured Indebtedness and is subordinated to the Notes on terms no
less favorable to the Holders thereof than the subordination terms set forth in the
indenture governing the Existing Senior Subordinated Notes as in effect on the Issue
Date;




(b) is not incurred while a Default exists and no Default shall result
therefrom;




(c) matures and does not require any payment of principal prior to the final
maturity of the Notes (other than in a manner consistent with the terms of this
Indenture); and




(d) in the case of clause (y), is not incurred in contemplation of such
acquisition or merger; or




(ii) after giving effect to such acquisition or merger, either




(a) the Issuer would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a) hereof, or




(b) the Fixed Charge Coverage Ratio of the Issuer and the Restricted
Subsidiaries is equal to or greater than immediately prior to such acquisition or
merger;


 


-67-









 






(15) Indebtedness 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 that such Indebtedness is extinguished within two Business
Days of its incurrence;




(16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a
letter of credit issued pursuant to the Credit Facilities, in a principal amount not in
excess of the stated amount of such letter of credit;




(17) (a) any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or
other obligations of any Restricted Subsidiary so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this
Indenture; or




(b) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer;
provided that such guarantee is incurred in accordance with Section 4.15 hereof;




(18) Indebtedness of Foreign Subsidiaries of the Issuer incurred not to exceed at any
one time outstanding and together with any other Indebtedness incurred under this clause
(18) 5.0% of the Total Assets of the Foreign Subsidiaries (it being understood that any
Indebtedness incurred pursuant to this clause (18) shall cease to be deemed incurred or
outstanding for purposes of this clause (18) but shall be deemed incurred for the purposes
of Section 4.09(a) hereof from and after the first date on which the Issuer or such
Restricted Subsidiary could have incurred such Indebtedness under Section 4.09(a) hereof
without reliance on this clause (18));




(19) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary
incurred to finance or assumed in connection with an acquisition in a principal amount not
to exceed $200.0 million in the aggregate at any one time outstanding together with all
other Indebtedness, Disqualified Stock and/or Preferred Stock issued under this clause (19)
(it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred
pursuant to this clause (19) shall cease to be deemed incurred or outstanding for purposes
of this clause (19) but shall be deemed incurred for the purposes of Section 4.09(a) hereof
from and after the first date on which such Restricted Subsidiary could have incurred such
Indebtedness, Disqualified Stock or Preferred Stock under Section 4.09(a) hereof without
reliance on this clause (19));




(20) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i)
the financing of insurance premiums or (ii) take-or-pay obligations contained in supply
arrangements in each case, incurred in the ordinary course of business; and




(21) Indebtedness consisting of Indebtedness issued by the Issuer or any of its
Restricted Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance the purchase or
redemption of Equity Interests of the Issuer or any direct or indirect parent company of the
Issuer to the extent described in clause (4) of Section 4.07(b) hereof.


 


-68-









 






(c) For purposes of determining compliance with this Section 4.09:




(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
(or any portion thereof) meets the criteria of more than one of the categories of permitted
Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1) through (21) of
Section 4.09(b) hereof or is entitled to be incurred pursuant to Section 4.09(a) hereof, the
Issuer, in its sole discretion, shall classify or reclassify such item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be required to
include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock in
one of the above clauses; provided that all Indebtedness outstanding under the
Credit Facilities on the Issue Date shall be treated as incurred on the Issue Date under
clause (1) of Section 4.09(b) hereof; and




(2) at the time of incurrence, the Issuer shall be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness described in Sections
4.09(a) and 4.09(b) hereof.



Accrual of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount, the payment of interest in the form of additional
Indebtedness and the payment of dividends in the form of additional Disqualified Stock or Preferred
Stock, as applicable, shall in each case not be deemed to be an incurrence of Indebtedness,
Disqualified Stock or Preferred Stock for purposes of this Section 4.09.



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 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 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 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 refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being refinanced.



The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred
in a different currency from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.



Notwithstanding anything to the contrary, the Issuer shall not, and shall not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that
is subordinated or junior in right of payment to any Indebtedness of the Issuer or such Guarantor,
as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the
Notes or such Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Issuer or such Guarantor, as the case may be. For the
purposes of this Indenture, Indebtedness that is unsecured is not deemed to be subordinated or
junior to Secured Indebtedness merely because it is unsecured, and Senior Indebtedness is not
deemed to be subordinated or junior to any other Senior Indebtedness merely because it has a junior
priority with respect to the same collateral.


 


-69-









 





Section 4.10 Asset Sales.



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




(1) the Issuer or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Issuer) of the assets sold or otherwise disposed of; and




(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration
therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; provided that the amount of:




(A) any liabilities (as reflected in the Issuer’s or such Restricted
Subsidiary’s most recent balance sheet or in the footnotes thereto, or if incurred
or accrued subsequent to the date of such balance sheet, such liabilities that would
have been shown on the Issuer’s or such Restricted Subsidiary’s balance sheet or in
the footnotes thereto if such incurrence or accrual had taken place on the date of
such balance sheet) of the Issuer or such Restricted Subsidiary, other than
liabilities that are by their terms subordinated to the Notes, that are assumed by
the transferee of any such assets and for which the Issuer and all of its Restricted
Subsidiaries have been validly released by all creditors in writing,




(B) any securities, notes or other similar obligations received by the Issuer
or such Restricted Subsidiary from such transferee that are converted by the Issuer
or such Restricted Subsidiary into cash (to the extent of the cash received) within
180 days following the closing of such Asset Sale, and




(C) any Designated Non-cash Consideration received by the Issuer or such
Restricted Subsidiary in such Asset Sale having an aggregate fair market value,
taken together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not to exceed 2.5% of Total Assets
at the time of the receipt of such Designated Non-cash Consideration, with the fair
market value of each item of Designated Non-cash Consideration being measured at the
time received and without giving effect to subsequent changes in value,




shall be deemed to be cash for purposes of this provision and for no other purpose.



(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or
such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,




(1) to permanently reduce:




(A) Obligations under the Senior Credit Facilities; and to correspondingly
reduce commitments with respect thereto;




(B) Obligations under Senior Indebtedness that is secured by a Lien, which Lien
is permitted by this Indenture, and to correspondingly reduce commitments with
respect thereto;




(C) Obligations under other Senior Indebtedness (and to correspondingly reduce
commitments with respect thereto), provided that, to the extent the Issuer
reduces Obligations under such Senior Indebtedness, the Issuer shall reduce (or
offer to reduce as applicable) Obligations under the Notes on a pro rata basis as
provided under Section 3.07 hereof through open-market purchases (to the extent such
purchases are at or above
100% of the principal amount thereof) or offer to purchase Notes by making an
offer (in accordance with the procedures set forth under Section 4.10(c) hereof) to
all Holders to purchase their Notes at 100% of the principal amount thereof, plus
the amount of accrued but unpaid interest, if any, on the amount of Notes that would
otherwise be prepaid; or




(D) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than
Indebtedness owed to the Issuer or another Restricted Subsidiary;


 


-70-









 






(2) to make (A) an Investment in any one or more businesses, provided that such
Investment in any business is in the form of the acquisition of Capital Stock and results in
the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount
of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (B)
capital expenditures or (C) acquisitions of other assets, in each of (A), (B) and (C), used
or useful in a Similar Business, or




(3) to make an investment in (A) any one or more businesses, provided that such
Investment in any business is in the form of the acquisition of Capital Stock and results in
the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount
of the Capital Stock of such business such that it constitutes a Restricted Subsidiary,
(B) properties or (C) acquisitions of other assets that, in each of (A), (B) and (C),
replace the businesses, properties and/or assets that are the subject of such Asset Sale;



provided that, in the case of clauses (2) and (3) above, a binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such commitment so long as
the Issuer, or such other Restricted Subsidiary enters into such commitment with the good faith
expectation that such Net Proceeds shall be applied to satisfy such commitment within 180 days of
such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is
later cancelled or terminated for any reason before the Net Proceeds are applied in connection
therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a
“Second Commitment”) within 180 days of such cancellation or termination; provided
further that if any Second Commitment is later cancelled or terminated for any reason
before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.



(c) Any Net Proceeds from an Asset Sale that are not invested or applied as provided and
within the time period set forth in Section 4.10(b) shall be deemed to constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Issuer
shall make an offer to all Holders of the Notes and, if required by the terms of any Indebtedness
that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari
Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal
amount of the Notes and such Pari Passu Indebtedness that is an integral multiple of $2,000 that
may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to
the date fixed for the closing of such offer, in accordance with the procedures set forth in this
Indenture. The Issuer shall commence an Asset Sale Offer with respect to Excess Proceeds within
ten Business Days after the date that Excess Proceeds exceed $100.0 million by mailing the notice
required pursuant to the terms of this Indenture, with a copy to the Trustee.



To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining
Excess Proceeds for general corporate purposes, subject to other covenants contained in this
Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered
by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes
and such Pari Passu
Indebtedness to be purchased on a pro rata basis based on the accreted value or principal
amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.


 


-71-









 





(d) Pending the final application of any Net Proceeds pursuant to this Section 4.10, the
holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness
outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner
not prohibited by this Indenture.



(e) The Issuer 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 Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Indenture, the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.



Section 4.11 Transactions with Affiliates.



(a) The Issuer 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 Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments
or consideration in excess of $20.0 million, unless:




(1) such Affiliate Transaction is on terms that are not materially less favorable to
the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated
Person on an arm’s-length basis; and




(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or consideration in
excess of $50.0 million, a resolution adopted by the majority of the board of directors of
the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate
certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a).




(b) The provisions of Section 4.11(a) hereof shall not apply to the following:




(1) transactions between or among the Issuer or any of its Restricted Subsidiaries;




(2) Restricted Payments permitted by Section 4.07 hereof and the definition of
“Permitted Investments”;




(3) the payment of management, consulting, monitoring and advisory fees and related
expenses to the Investors pursuant to the Sponsor Management Agreement in an aggregate
amount in any fiscal year not to exceed 1% of EBITDA for such fiscal year (calculated,
solely for the purpose of this clause (3), assuming (A) that such fees and related expenses
had not been paid, when calculating Net Income, and (B) without giving effect to clause (h)
of the definition of EBITDA) (plus any unpaid management, consulting, monitoring and
advisory fees and related expenses within such amount accrued in any prior year) and the
termination fees pursuant to the Sponsor Management Agreement not to exceed the amount set
forth in the Sponsor Management
Agreement as in effect on the Issue Date;


 


-72-









 






(4) the payment of reasonable and customary fees paid to, and indemnities provided for
the benefit of, former, current or future officers, directors, employees or consultants of
the Issuer, any of its direct or indirect parent companies or any of its Restricted
Subsidiaries;




(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case
may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that
such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point
of view or stating that such terms are not materially less favorable to the Issuer or its
relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an
arm’s-length basis;




(6) any agreement as in effect as of the Issue Date, or any amendment thereto (so long
as any such amendment is not disadvantageous to the Holders when taken as a whole as
compared to the applicable agreement as in effect on the Issue Date);




(7) the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement or the
equivalent (including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements which it may
enter into thereafter; provided, however, that the existence of, or the
performance by the Issuer or any of its Restricted Subsidiaries of obligations under any
future amendment to any such existing agreement or under any similar agreement entered into
after the Issue Date shall only be permitted by this clause (7) to the extent that the terms
of any such amendment or new agreement are not otherwise disadvantageous to the Holders when
taken as a whole;




(8) [Reserved];




(9) transactions with customers, clients, suppliers, or purchasers or sellers of goods
or services, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture which are fair to the Issuer and its Restricted
Subsidiaries, in the reasonable determination of the board of directors of the Issuer or the
senior management thereof, or are on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party;




(10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of
the Issuer to any Permitted Holder or to any director, officer, employee or consultant (or
their respective estates, investment funds, investment vehicles, spouses or former spouses)
of the Issuer, any of its direct or indirect parent companies or any of its Subsidiaries;




(11) sales of accounts receivable, or participations therein, in connection with any
Receivables Facility;




(12) payments by the Issuer or any of its Restricted Subsidiaries to any of the
Investors made for any financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which payments are approved by a majority of
the board of directors of the Issuer in good faith;




(13) payments or loans (or cancellation of loans) to employees or consultants of the
Issuer, any of its direct or indirect parent companies or any of its Restricted
Subsidiaries and employment agreements, stock option plans and other similar arrangements
with such employees or consultants which, in each case, are approved by the Issuer in good
faith; and




(14) investments by the Investors in securities of the Issuer or any of its Restricted
Subsidiaries so long as (i) the investment is being offered generally to other investors on
the same or more favorable terms and (ii) the investment constitutes less than 5% of the
proposed or outstanding issue amount of such class of securities.


 


-73-









 





Section 4.12 Liens.



The Issuer shall not, and shall not permit any Guarantor to, directly or indirectly, create,
incur, assume or suffer to exist any Lien (except Permitted Liens) that secures obligations under
any Indebtedness or any related Guarantee, on any asset or property of the Issuer or any Guarantor,
or any income or profits therefrom, or assign or convey any right to receive income therefrom,
unless:




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




(2) in all other cases, the Notes or the Guarantees are equally and ratably secured,
except that the foregoing shall not apply to (A) Liens securing the Notes and the related
Guarantees, (B) Liens securing Indebtedness permitted to be incurred under Credit
Facilities, including any letter of credit facility relating thereto, that was permitted by
the terms of this Indenture to be incurred pursuant to clause (1) of Section 4.09(b) hereof
and (C) Liens incurred to secure Obligations in respect of any Indebtedness permitted to be
incurred pursuant to Section 4.09 hereof; provided that, with respect to Liens
securing Obligations permitted under this subclause (C), at the time of incurrence and after
giving pro forma effect thereto, the Consolidated Secured Debt Ratio would be no greater
than 4.0 to 1.0.



Section 4.13 Corporate Existence.



Subject to Article 5 hereof, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the Issuer or
any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not be
required to preserve any such right, license or franchise, or the corporate, partnership or other
existence of any of its Restricted Subsidiaries, if the Issuer in good faith shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Issuer and
its Restricted Subsidiaries, taken as a whole.



Section 4.14 Offer to Repurchase Upon Change of Control.



(a) If a Change of Control occurs, unless the Issuer has previously or concurrently mailed a
redemption notice with respect to all the outstanding Notes as described under Section 3.07 hereof,
the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below
(the “Change of Control Offer”) at a price in cash (the “Change of Control
Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Additional Interest, if any, to the date of purchase, subject to the right of Holders
of the Notes 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 Issuer shall send notice of such Change of Control Offer by first-class mail or by
electronic transmission, with a copy to the Trustee, to each Holder of Notes to the address of such
Holder appearing in the security register with a copy to the Trustee or otherwise in accordance
with the procedures of DTC, with the following information:




(1) that a Change of Control Offer is being made pursuant to this Section 4.14 and that
all Notes properly tendered pursuant to such Change of Control Offer will be accepted for
payment by the Issuer;


 


-74-









 






(2) the purchase price and the purchase date, which will be no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the “Change of Control Payment
Date”);




(3) that any Note not properly tendered will remain outstanding and continue to accrue
interest;




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




(5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender such Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of such Notes completed, to the paying agent specified in the
notice at the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;




(6) that Holders shall be entitled to withdraw their tendered Notes and their election
to require the Issuer to purchase such Notes, provided that the paying agent
receives, not later than the close of business on the expiration date of the Change of
Control Offer, a telegram, telex, facsimile transmission or letter setting forth the name of
the Holder of the Notes, the principal amount of Notes tendered for purchase, and a
statement that such Holder is withdrawing its tendered Notes and its election to have such
Notes purchased;




(7) that if the Issuer is redeeming less than all of the Notes, the Holders of the
remaining Notes will be issued new Notes and such new Notes will be equal in principal
amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the
Notes must be equal to $2,000 or an integral multiple thereof;




(8) the other instructions, as determined by the Issuer, consistent with this Section
4.14, that a Holder must follow; and




(9) if such notice is mailed prior to the occurrence of a Change of Control, stating
that the Change of Control Offer is conditional upon the occurrence of such Change of
Control.



The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner
herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice
but it is defective, such Holder’s failure to receive such notice or such defect shall not affect
the validity of the proceedings for the purchase of the Notes as to all other Holders that properly
received such notice without defect. The Issuer 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 Notes pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of this
Section 4.14, the Issuer shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under this Section 4.14 by virtue thereof.


 


-75-









 






(b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,




(1) accept for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer,




(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control
Payment in respect of all Notes or portions thereof so tendered, and




(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so
accepted together with an Officer’s Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.



(c) The Issuer shall not be required to make a Change of Control Offer following 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 applicable to a Change
of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of
Control Offer may be made in advance of a Change of Control, conditional upon such Change of
Control, if a definitive agreement is in place for the Change of Control at the time of making of
the Change of Control Offer.



(d) Other than as specifically provided in this Section 4.14, any purchase pursuant to this
Section 4.14 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06 hereof.



Section 4.15 Limitation on Guarantees of Indebtedness by Restricted Subsidiaries.



The Issuer shall not permit any of its Wholly-Owned Subsidiaries that are Restricted
Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee
other capital markets debt securities), other than a Guarantor or a Foreign Subsidiary, to
guarantee the payment of any Indebtedness of the Issuer or any other Guarantor unless:




(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture, the form of which is attached as Exhibit D hereto,
providing for a Guarantee by such Restricted Subsidiary, except that with respect to a
guarantee of Indebtedness of the Issuer or any Guarantor:




(a) if the Notes or such Guarantor’s Guarantee are subordinated in right of
payment to such Indebtedness, the Guarantee under the supplemental indenture shall
be subordinated to such Restricted Subsidiary’s guarantee with respect to such
Indebtedness substantially to the same extent as the Notes are subordinated to such
Indebtedness; and




(b) if such Indebtedness is by its express terms subordinated in right of
payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such
Restricted Subsidiary with respect to such Indebtedness shall be subordinated in
right of payment to such Guarantee substantially to the same extent as such
Indebtedness is subordinated to the Notes;


 


-76-









 






(2) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or
any other rights against the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee; and




(3) such Restricted Subsidiary shall deliver to the Trustee an Opinion of Counsel to
the effect that:




(a) such Guarantee has been duly executed and authorized; and




(b) such Guarantee constitutes a valid, binding and enforceable obligation of
such Restricted Subsidiary, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws (including, without limitation, all laws
relating to fraudulent transfers) and except insofar as enforcement thereof is
subject to general principles of equity;



provided that this Section 4.15 shall not be applicable to any guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred
in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.



Section 4.16 Discharge and Suspension of Covenants.



(a) If after the Issue Date (i) the Notes have Investment Grade Ratings from both Rating
Agencies and (ii) no Default has occurred and is continuing under this Indenture then, beginning on
that day and continuing at all times thereafter regardless of any subsequent changes in the rating
of the Notes, Section 4.07 hereof, Section 4.08 hereof, Section 4.09 hereof, Section 4.10 hereof,
Section 4.11 hereof, Section 4.15 hereof and clause (4) of Section 5.01 hereof shall no longer be
applicable to the Notes.



(b) During any period of time that: (i) the Notes have Investment Grade Ratings from both
Rating Agencies and (ii) no Default has occurred and is continuing under this Indenture (the
occurrence of the events described in the foregoing clauses (i) and (ii) being collectively
referred to as a “Covenant Suspension Event”), the Issuer and the Restricted Subsidiaries
shall not be subject to Section 4.14 hereof (the “Suspended Covenant”).



(c) In the event that the Issuer and the Restricted Subsidiaries are not subject to the
Suspended Covenant under this Indenture for any period of time as a result of the foregoing, and on
any subsequent date one or both of the Rating Agencies (i) withdraw their Investment Grade Rating
or downgrade the rating assigned to the Notes below an Investment Grade Rating and/or (ii) the
Issuer or any of its Affiliates enter into an agreement to effect a transaction that would result
in a Change of Control and one or more of the Rating Agencies indicate that if consummated, such
transaction (alone or together with any related recapitalization or refinancing transactions) would
cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned
to the Notes below an Investment Grade Rating, then the Issuer and the Restricted Subsidiaries
shall thereafter again be subject to the Suspended Covenant under this Indenture with respect to
future events, including, without limitation, a proposed transaction described in clause (ii).



(d) The Issuer shall deliver promptly to the Trustee an Officer’s Certificate notifying it of
any such occurrence under this Section 4.16.


 


-77-









 





ARTICLE 5




SUCCESSORS




Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets.



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




(1) either: (x) the Issuer is the surviving corporation; or (y) the Person formed by
or surviving any such consolidation or merger (if other than the Issuer) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have been made is a
corporation organized or existing under the laws of the jurisdiction of organization of the
Issuer or the laws of the United States, any state thereof, the District of Columbia, or any
territory thereof (such Person, as the case may be, being herein called the “Successor
Company”);




(2) the Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under the Notes pursuant to supplemental indentures or other
documents or instruments in form reasonably satisfactory to the Trustee;




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




(4) immediately after giving pro forma effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning of the
applicable four-quarter period,




(A) the Successor Company would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in Section 4.09(a) hereof, or




(B) the Fixed Charge Coverage Ratio for the Successor Company, the Issuer and
its Restricted Subsidiaries would be equal to or greater than such Ratio for the
Issuer and its Restricted Subsidiaries immediately prior to such transaction;




(5) each Guarantor, unless it is the other party to the transactions described above,
in which case Section 5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture,
the Notes and the Registration Rights Agreement; and




(6) the Issuer (or, if applicable, the Successor Company) shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indentures, if any, comply with this
Indenture.



(b) The Successor Company shall succeed to, and be substituted for the Issuer, as the case may
be, under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding clauses (3)
and (4) of Section 5.01(a) hereof,




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




(y) the Issuer may merge with an Affiliate of the Issuer, as the case may be, solely
for the purpose of reincorporating the Issuer in any state of the United States, the
District of Columbia or any territory thereof so long as the amount of Indebtedness of the
Issuer and its Restricted Subsidiaries is not increased thereby.


 


-78-









 





(c) Subject to certain limitations described in this Indenture governing release of a
Guarantee upon the sale, disposition or transfer of a guarantor, no Guarantor shall, and the Issuer
shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or
not the Issuer or Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any Person unless:




(1) (A) such Guarantor is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership, limited partnership, limited liability company or trust organized
or existing under the laws of the jurisdiction of organization of such Guarantor, as the
case may be, or the laws of the United States, any state thereof, the District of Columbia,
or any territory thereof (such Guarantor or such Person, as the case may be, being herein
called the “Successor Person”);




(B) the Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantor’s related Guarantee
pursuant to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;




(C) immediately after such transaction, no Default exists; and




(D) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture; or




(2) the transaction is made in compliance with Section 4.10 hereof.




(d) Subject to certain limitations described in this Indenture, the Successor Person
shall succeed to, and be substituted for, such Guarantor under this Indenture and such
Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or
transfer all or part of its properties and assets to another Guarantor or the Issuer, (ii)
merge with an Affiliate of the Issuer solely for the purpose of reincorporating or
reorganizing the Guarantor in the United States, any state thereof, the District of Columbia
or any territory thereof so long as the amount of Indebtedness of the Issuer and its
Restricted Subsidiaries is not increased thereby, or (iii) convert into a corporation,
partnership, limited partnership, limited liability company or trust organized or existing
under the laws of the jurisdiction of organization of such Guarantor, in each case without
regard to the requirements set forth in Section 5.01(c);




(e) Notwithstanding anything to the contrary, the mergers contemplated by the
Transaction Agreement shall be permitted without compliance with this Section 5.01.



Section 5.02 Successor Corporation Substituted.



Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Issuer in accordance with
Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which
the Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed
to, and be substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the
Issuer shall refer instead to the successor corporation and not to the Issuer), and may exercise
every right and power of the Issuer under this Indenture with the same effect as if such successor
Person had been named as the Issuer herein; provided that the predecessor Issuer shall not
be relieved from the obligation to pay the principal of and interest and Additional Interest, if
any, on the Notes except in the case of a sale, assignment, transfer, conveyance or other
disposition of all of the Issuer’s assets that meets the requirements of Section 5.01 hereof.


 


-79-









 





ARTICLE 6




DEFAULTS AND REMEDIES




Section 6.01 Events of Default.



(a) An “Event of Default” wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):




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




(2) default for 30 days or more in the payment when due of interest or Additional
Interest on or with respect to the Notes;




(3) failure by the Issuer or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less 30% in principal amount of the Notes to
comply with any of its obligations, covenants or agreements (other than a default referred
to in clauses (1) and (2) above) contained in this Indenture or the Notes;




(4) default under any mortgage, indenture or instrument under which there is issued or
by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or
any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after
the issuance of the Notes, if both:




(a) such default either results from the failure to pay any principal of such
Indebtedness at its stated final maturity (after giving effect to any applicable
grace periods) or relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated final maturity and results in the
holder or holders of such Indebtedness causing such Indebtedness to become due prior
to its stated maturity; and




(b) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
stated final maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $100.0 million or more at any
one time outstanding;




(5) failure by the Issuer or any Significant Subsidiary to pay final judgments
aggregating in excess of $100.0 million, which final judgments remain unpaid, undischarged
and unstayed for a period of more than 60 days after such judgment becomes final, and in the
event such judgment is covered by insurance, an enforcement proceeding has been commenced by
any creditor upon such judgment or decree which is not promptly stayed;


 


-80-









 






(6) the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:




(i) commences proceedings to be adjudicated bankrupt or insolvent;




(ii) consents to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under applicable Bankruptcy law;




(iii) consents to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of it or for all or substantially all of its
property;




(iv) makes a general assignment for the benefit of its creditors; or




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




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




(i) is for relief against the Issuer or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, in a proceeding in which the
Issuer or any such Restricted Subsidiaries, that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, is to be adjudicated bankrupt or insolvent;




(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary, or for all or substantially all of the
property of the Issuer or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or




(iii) orders the liquidation of the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary;




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




(8) the Guarantee of any Significant Subsidiary shall for any reason cease to be in
full force and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary, as the case may be, denies that it has any
further liability under its Guarantee or gives notice to such effect, other than by reason
of the termination of this Indenture or the release of any such Guarantee in accordance with
this Indenture.


 


-81-









 





(b) In the event of any Event of Default specified in clause (4) of Section 6.01(a)
hereof, such Event of Default and all consequences thereof (excluding any resulting payment
default, other than as a result of acceleration of the Notes) shall be annulled, waived and
rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days
after such Event of Default arose:




(1) the Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or




(2) holders thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default; or




(3) the default that is the basis for such Event of Default has been cured.



Section 6.02 Acceleration.



If any Event of Default (other than an Event of Default specified in clause (6) or (7) of
Section 6.01(a) hereof) occurs and is continuing under this Indenture, the Trustee or the Holders
of at least 30% in principal amount of the then total outstanding Notes may declare the principal,
premium, if any, interest and any other monetary obligations on all the then outstanding Notes to
be due and payable immediately. Upon the effectiveness of such declaration, such principal and
interest shall be due and payable immediately. The Trustee shall have no obligation to accelerate
the Notes if and so long as a committee of its Responsible Officers in good faith determines
acceleration is not in the best interest of the Holders of the Notes.



Notwithstanding the foregoing, in the case of an Event of Default arising under clause (6) or
(7) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable immediately without
further action or notice.



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



Section 6.03 Other Remedies.



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



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



Section 6.04 Waiver of Past Defaults.



Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences hereunder, except a continuing Default in the payment of the principal
of, premium, if any, Additional Interest, if any, or interest on, any Note held by a non-consenting
Holder (including in
connection with an Asset Sale Offer or a Change of Control Offer); provided, subject
to Section 6.02 hereof, that the Holders of a majority in aggregate principal amount of the then
outstanding Notes may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration; provided further such rescission
would not conflict with any judgment of a court of competent jurisdiction. 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.


 


-82-









 





Section 6.05 Control by Majority.



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



Section 6.06 Limitation on Suits.



Subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect to this
Indenture or the Notes unless:




(1) such Holder has previously given the Trustee notice that an Event of Default is
continuing;




(2) Holders of at least 30% in principal amount of the total outstanding Notes have
requested the Trustee to pursue the remedy;




(3) Holders of the Notes have offered the Trustee reasonable security or indemnity
against any loss, liability or expense;




(4) the Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and




(5) Holders of a majority in principal amount of the total outstanding Notes have not
given the Trustee a direction inconsistent with such request within such 60-day period.



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



Section 6.07 Rights of Holders of Notes to Receive Payment.



Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and Additional Interest, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in connection with an
Asset Sale Offer or a Change of Control Offer), 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.


 


-83-









 





Section 6.08 Collection Suit by Trustee.



If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount of principal of, premium, if any, and Additional
Interest, if any, and interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.



Section 6.09 Restoration of Rights and Remedies.



If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceedings, the Issuer, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding has been
instituted.



Section 6.10 Rights and Remedies Cumulative.



Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



Section 6.11 Delay or Omission Not Waiver.



No delay or omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



Section 6.12 Trustee May File Proofs of Claim.



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


 


-84-









 





Section 6.13 Priorities.



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




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




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




(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct
including a Guarantor, if applicable.



The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.13.



Section 6.14 Undertaking for Costs.



In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.



ARTICLE 7




TRUSTEE




Section 7.01 Duties of Trustee.



(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
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 Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and


 


-85-









 






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



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




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




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




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



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



(e) The Trustee shall be under no obligation to exercise any of its rights or powers under
this Indenture at the request or direction of any of the Holders of the Notes unless the Holders
have offered to the Trustee reasonable indemnity or security against any loss, liability or
expense.



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



Section 7.02 Rights of Trustee.



(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall
incur no liability or additional liability of any kind by reason of such inquiry or investigation.



(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the written 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.


 


-86-









 





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



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



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



(f) None of the provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise to incur any liability, financial or otherwise, in the performance of any 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 indemnity satisfactory to it against such
risk or liability is not assured to it.



(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture. Delivery of reports to the
Trustee pursuant to Section 4.03 hereof shall not constitute actual knowledge of, or notice to, the
Trustee of the information contained therein.



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



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



(j) In the event the Issuer is required to pay Additional Interest, the Issuer will provide
written notice to the Trustee of the Issuer’s obligation to pay Additional Interest no later than
15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the
Additional Interest to be paid by the Issuer. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.



(k) The Trustee may request that the Company and any Guarantor deliver an Officer’s
Certificate setting forth the names of individuals and/or titles of officers (with specimen
signatures) authorized at such times to take specific actions pursuant to this Indenture, which
Officer’s Certificate may be signed by any person specified as so authorized in any such
certificate previously delivered and not superceded.



Section 7.03 Individual Rights of Trustee.



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


 


-87-









 





Section 7.04 Trustee’s Disclaimer.



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



Section 7.05 Notice of Defaults.



If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Notes a notice of the Default within 90 days after it occurs. Except in the
case of a Default relating to the payment of principal, premium, if any, or interest on any Note,
the Trustee may withhold from the Holders notice of any continuing Default if and so long as a
committee of its Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes. The Trustee shall not be deemed to know of any Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee.



Section 7.06 Reports by Trustee to Holders of the Notes.



Within 60 days after each May 15, beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act
Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within
the twelve months preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by Trust Indenture Act Section 313(c).



A copy of each report at the time of its mailing to the Holders of Notes shall be mailed or
delivered by electronic transmission to the Issuer and filed with the SEC and each stock exchange
on which the Notes are listed in accordance with Trust Indenture Act Section 313(d). The Issuer
shall promptly notify the Trustee when the Notes are listed on any stock exchange.



Section 7.07 Compensation and Indemnity.



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



The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and
hold the Trustee harmless against, any and all loss, damage, claims, liability or expense
(including attorneys’ fees) incurred by it in connection with the acceptance or administration of
this trust and the performance of its duties hereunder (including the costs and expenses of
enforcing this Indenture against the
Issuer or any of the Guarantors (including this Section 7.07) or defending itself against any
claim whether asserted by any Holder, the Issuer or any Guarantor, or liability in connective with
the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee
shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The
Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay
the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful
misconduct, negligence or bad faith.


 


-88-









 





The obligations of the Issuer under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee.



Notwithstanding anything contrary in Section 4.12 hereof, to secure the payment obligations of
the Issuer and the Guarantors in this Section 7.07, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge
of this Indenture.



When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(a)(6) or (7) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the
extent applicable.



Section 7.08 Replacement of Trustee.



A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08. The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Issuer. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing.
The Issuer may remove the Trustee if:




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




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




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




(d) the Trustee becomes incapable of acting.



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



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


 


-89-









 





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



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



Section 7.09 Successor Trustee by Merger, Etc.



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



Section 7.10 Eligibility; Disqualification.



There shall at all times be a Trustee hereunder 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 $50,000,000
as set forth in its most recent published annual report of condition.



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



Section 7.11 Preferential Collection of Claims Against Issuer.



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



ARTICLE 8




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.



The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03
hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.


 


-90-









 





Section 8.02 Legal Defeasance and Discharge.



Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the
Issuer and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes and Guarantees on the date the conditions set forth below are
satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer
shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
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 Notes and this Indenture including that of the
Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder:




(a) the rights of Holders of Notes to receive payments in respect of the principal of,
premium, if any, and interest on the Notes when such payments are due solely out of the
trust created pursuant to this Indenture referred to in Section 8.04 hereof;




(b) the Issuer’s obligations with respect to Notes concerning issuing temporary Notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of an office or agency for payment and money for security payments held in trust;




(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s
obligations in connection therewith; and




(d) this Section 8.02.



Subject to compliance with this Article 8, the Issuer 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 Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from their obligations under the covenants contained in
Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 hereof and
clauses (4) and (5) of Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not
“outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be
deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event of Default under Section
6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6) (solely with respect to
Restricted Subsidiaries that are Significant Subsidiaries), 6.01(7) (solely with respect to
Restricted Subsidiaries that are Significant Subsidiaries) and 6.01(8) hereof shall not constitute
Events of Default.


 


-91-









 





Section 8.04 Conditions to Legal or Covenant Defeasance.



The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:




In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:




(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if any, and
interest due on the Notes on the stated maturity date or on the redemption date, as the case
may be, of such principal, premium, if any, or interest on such Notes and the Issuer must
specify whether such Notes are being defeased to maturity or to a particular redemption
date;




(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions,




(a) the Issuer has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or




(b) since the issuance of the Notes, 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, subject to customary assumptions and exclusions, the Holders of the Notes will not
recognize income, gain or loss for U.S. federal income tax purposes, as applicable, 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;




(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the 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;




(4) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in
each case, the granting of Liens in connection therewith) shall have occurred and be
continuing on the date of such deposit;




(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Senior Credit Facilities, the Existing
Senior Notes, the Existing Senior Secured Notes, the Existing Senior Subordinated Notes or
the indentures pursuant to which the Existing Senior Notes, the Existing Senior Secured
Notes and the Existing Senior Subordinated Notes were issued or any other material agreement
or instrument (other than this Indenture) to which, the Issuer or any Guarantor is a party
or by which the Issuer or any
Guarantor is bound (other than that resulting, with respect to any Indebtedness being
defeased, from any borrowing of funds to be applied to make the deposit required to effect
such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit
relating to such Indebtedness, and the granting of Liens in connection therewith);


 


-92-









 






(6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and exclusions
following the deposit, the trust funds will not be subject to the effect of Section 547 of
Title 11 of the United States Code;




(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating
that the deposit was not made by the Issuer with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuer or any Guarantor or others; and




(8) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been complied with.



Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.



Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying Agent (including
the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal, premium and
Additional Interest, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.



The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or Government Securities deposited pursuant to Section 8.04 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 Notes.



Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon the request of the Issuer any money or Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(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.



Section 8.06 Repayment to Issuer.



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


 


-93-









 





Section 8.07 Reinstatement.



If the Trustee or Paying Agent is unable to apply any United States dollars or 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 Issuer’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the 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 that, if the
Issuer makes any payment of principal of, premium and Additional Interest, if any, or interest on
any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.



ARTICLE 9




AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.



Notwithstanding Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee or
this Indenture) and the Trustee may amend or supplement this Indenture and any Guarantee or Notes
without the consent of any Holder:




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




(2) to provide for uncertificated Notes of such series in addition to or in place of
certificated Notes;




(3) to comply with Section 5.01 hereof;




(4) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to the
Holders;




(5) to make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under this Indenture of any such
Holder;




(6) to add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;




(7) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




(8) to evidence and provide for the acceptance and appointment under this Indenture of
a successor Trustee thereunder pursuant to the requirements thereof;




(9) to provide for the issuance of exchange notes or private exchange notes, which are
identical to exchange notes except that they are not freely transferable;




(10) to add a Guarantor under this Indenture;


 


-94-









 






(11) to conform the text of this Indenture, Guarantees or the Notes to any provision of
the “Description of 2020 notes” section of the Offering Memorandum to the extent that such
provision in such “Description of 2020 notes” section was intended to be a verbatim
recitation of a provision of this Indenture, Guarantee or Notes; or




(12) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes as permitted by this Indenture, including, without limitation to
facilitate the issuance and administration of the Notes; provided, however,
that (i) compliance with this Indenture as so amended would not result in Notes being
transferred in violation of the Securities Act or any applicable securities law and (ii)
such amendment does not materially and adversely affect the rights of Holders to transfer
Notes.



Upon the request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer
and the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the 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. Notwithstanding the foregoing, no Opinion of Counsel shall be required in
connection with the addition of a Guarantor under this Indenture upon execution and delivery by
such Guarantor and the Trustee of a supplemental indenture to this Indenture, the form of which is
attached as Exhibit D hereto, and delivery of an Officer’s Certificate.



Section 9.02 With Consent of Holders of Notes.



Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes and the Guarantees with the consent of the Holders of at least
a majority in principal amount of the Notes (including Additional Notes, if any) then outstanding
voting as a single class (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and
6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in
the payment of the principal of, premium and Additional Interest, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been rescinded) or compliance with
any provision of this Indenture, the Guarantees or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes (including Additional
Notes, if any) voting as a single class (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof and Section 2.09
hereof shall determine which Notes are considered to be “outstanding” for the purposes of this
Section 9.02.



Upon the request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Issuer in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.



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


 


-95-









 





After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver.



Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):




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




(2) reduce the principal of or change the fixed final maturity of any such Note or
alter or waive the provisions with respect to the redemption of such Notes (other than
provisions relating to Section 3.09, Section 4.10 and Section 4.14 hereof to the extent that
any such amendment or waiver does not have the effect of reducing the principal of or
changing the fixed final maturity of any such Note or altering or waiving the provisions
with respect to the redemption of such Notes);




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




(4) waive a Default in the payment of principal of or premium, if any, or interest on
the Notes, except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration, or in respect of a covenant or provision contained in this
Indenture or any Guarantee which cannot be amended or modified without the consent of all
Holders;




(5) make any Note payable in money other than that stated therein;




(6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of or premium, if any, or
interest on the Notes;




(7) make any change in these amendment and waiver provisions;




(8) impair the right of any Holder to receive payment of principal of, or interest on
such Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes;




(9) make any change to or modify the ranking of the Notes that would adversely affect
the Holders; or




(10) except as expressly permitted by this Indenture, modify the Guarantees of any
Significant Subsidiary in any manner adverse to the Holders of the Notes.



Section 9.03 Compliance with Trust Indenture Act.



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


 


-96-









 





Section 9.04 Revocation and Effect of Consents.



Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder;
provided that any amendment or waiver that requires the consent of each affected Holder of
a Note shall not become effective with respect to any non-consenting Holder pursuant to the last
paragraph in Section 9.02 hereof.



The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date unless the consent of the requisite
number of Holders has been obtained.



Section 9.05 Notation on or Exchange of Notes.



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



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



Section 9.06 Trustee to Sign Amendments, Etc.



The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article
9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Issuer may not sign an amendment, supplement or waiver until the
board of directors approves it. In executing any amendment, supplement or waiver, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, in addition to the documents required by Section 12.04 hereof, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amendment, supplement or
waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto,
enforceable against them in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof (including Section 9.03). Notwithstanding the foregoing, no
Opinion of Counsel will be required for the Trustee to execute any amendment or supplement adding a
new Guarantor under this Indenture, other than pursuant to Section 4.15.



Section 9.07 Payment for Consent.



Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to all Holders and is paid to all
Holders that so consent, waive
or agree to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.


 


-97-









 





ARTICLE 10




GUARANTEES




Section 10.01 Guarantee.



Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the
principal of, interest, premium and Additional Interest, if any, on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations
of the Issuer to the Holders or the Trustee hereunder or thereunder 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 Notes or any of such other obligations, that 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.



The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives, to the extent
permitted by law, diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against
the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee shall not
be discharged except by complete performance of the obligations contained in the Notes and this
Indenture.



Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section
10.01.



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



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 Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this 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 Guarantees.


 


-98-









 





Each Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees,
whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment
or performance had not been made. In the event that any payment or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.



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



The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such
Guarantor and shall be pari passu in right of payment with all existing and future Senior
Indebtedness of such Guarantor, if any.



Each payment to be made by a Guarantor in respect of its Guarantee shall be made without
set-off, counterclaim, reduction or diminution of any kind or nature.



Section 10.02 Limitation on Guarantor Liability.



Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum
amount as will, after giving effect to such maximum amount and 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 10, result in
the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee
shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a
contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of
such payment determined in accordance with GAAP.



Section 10.03 Execution and Delivery.



To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that
this Indenture shall be executed on behalf of such Guarantor by its President, one of its Vice
Presidents or one of its Assistant Vice Presidents.


 


-99-









 





Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof shall remain
in full force and effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.



If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Guarantee shall be valid nevertheless.



The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.



If required by Section 4.15 hereof, the Issuer shall cause any newly created or acquired
Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this Article 10, to
the extent applicable.



Section 10.04 Subrogation.



Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuer in
respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01 hereof;
provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes
shall have been paid in full.



Section 10.05 Benefits Acknowledged.



Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it
pursuant to its Guarantee are knowingly made in contemplation of such benefits.



Section 10.06 Release of Guarantees.



A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged,
and no further action by such Guarantor, the Issuer or the Trustee is required for the release of
such Guarantor’s Guarantee, upon:




(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock
of such Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all the assets of
such Guarantor which sale, exchange or transfer is made in compliance with the applicable
provisions of this Indenture;




(B) the release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or the guarantee which resulted in the creation of such Guarantee, except a
discharge or release by or as a result of payment under such guarantee;




(C) the proper designation of any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary; or




(D) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 hereof or the Issuer’s obligations under this Indenture being
discharged in accordance with the terms of this Indenture; and




(2) such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent provided for in this Indenture
relating to such transaction have been complied with.


 


-100-









 





ARTICLE 11




SATISFACTION AND DISCHARGE




Section 11.01 Satisfaction and Discharge.



This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when either:




(1) all Notes theretofore authenticated and delivered, except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has theretofore
been deposited in trust, have been delivered to the Trustee for cancellation; or




(2) (A) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable by reason of the making of a notice of redemption or otherwise, shall
become due and payable within one year or may be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer and the Issuer or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders of the Notes, cash in U.S. dollars, Government
Securities, or a combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest to pay and discharge the entire indebtedness
on the Notes not theretofore delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of maturity or redemption;




(B) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in
each case, the granting of Liens in connection therewith) with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such deposit or shall occur
as a result of such deposit and such deposit will not result in a breach or violation of, or
constitute a default under the Senior Credit Facilities, Senior Subordinated Notes (or the
indenture under which the Senior Subordinated Notes are issued) or any other material
agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is
a party or by which the Issuer or any Guarantor is bound (other than that resulting from any
borrowing of funds to be applied to make such deposit and any similar and simultaneous
deposit relating to other Indebtedness, and, in each case, the granting of Liens in
connection therewith);




(C) the Issuer has paid or caused to be paid all sums payable by it under this
Indenture; and




(D) the Issuer has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the redemption date, as the
case may be.



In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.



Notwithstanding the satisfaction and discharge of this Indenture, if money shall have
been deposited with the Trustee pursuant to subclause (A) of clause (2) of this Section 11.01,
the provisions of Section 11.02 and Section 8.06 hereof shall survive.


 


-101-









 





Section 11.02 Application of Trust Money.



Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium and Additional Interest, if any) and
interest for whose payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.



If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof 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, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided that if the Issuer has made any payment of principal of, premium and Additional
Interest, if any, or interest on any Notes because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.



ARTICLE 12




MISCELLANEOUS




Section 12.01 Trust Indenture Act Controls.



If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
Trust Indenture Act Section 318(c), the imposed duties shall control.




Section 12.02 Notices.



Any notice or communication by the Issuer, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in person or mailed by first-class mail (registered or certified,
return receipt requested), fax or overnight air courier guaranteeing next day delivery, to the
others’ address:




If to the Issuer and/or any Guarantor:




c/o Sungard Data Systems Inc.

680 East Swedesford Road

Wayne, Pennsylvania 19087

Fax No.: (610) 687-3725

Attention: General Counsel




If to the Trustee:




The Bank of New York Mellon

101 Barclay Street, Floor 8W

New York, New York 10286




Fax No.: (212) 815-5704

Attention: Corporate Trust Administration


 


-102-









 





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



All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five calendar days after being
deposited in the mail, postage prepaid, if mailed by first-class mail; 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; provided that any notice or communication delivered
to the Trustee shall be deemed effective upon actual receipt thereof.



Any notice or communication to a Holder shall be mailed by first-class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by
the Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.



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



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



Section 12.03 Communication by Holders of Notes with Other Holders of Notes.



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



Section 12.04 Certificate and Opinion as to Conditions Precedent.



Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take
any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to
the Trustee:




(a) An Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 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




(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.


 


-103-









 





Section 12.05 Statements Required in Certificate or Opinion.



Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof or Trust
Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section
314(e) and shall include:




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




(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with (and, in the case of an
Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of
fact); and




(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.



Section 12.06 Rules by Trustee and Agents.



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



Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.



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



Section 12.08 Governing Law.



THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.



Section 12.09 Waiver of Jury Trial.



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



Section 12.10 Force Majeure.



In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused by, directly or
indirectly, forces beyond its reasonable control, including without limitation, non-Trustee
strikes, work stoppages or accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software or hardware) services.


 


-104-









 





Section 12.11 No Adverse Interpretation of Other Agreements.



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



Section 12.12 Successors.



All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All
agreements of the 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
10.05 hereof.



Section 12.13 Severability.



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



Section 12.14 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 12.15 Table of Contents, Headings, Etc.



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



Section 12.16 Qualification of Indenture.



The Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture Act in
accordance with the terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys’ fees and expenses for the Issuer, the
Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this Indenture and the
Notes. The Trustee shall be entitled to receive from the Issuer and the Guarantors any such
Officer’s Certificates, Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the Trust Indenture Act.



[Signatures on following page]



 


-105-









 





	 	 	 	 	 	 	 	 	 
	 	 	SUNGARD DATA SYSTEMS INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Eric G. Erickson	 	 
	 

	 	 	 	Title:
	 	Vice President & Treasurer	 	 







ADVANCED PORTFOLIO TECHNOLOGIES, INC.

AUTOMATED SECURITIES CLEARANCE LLC

EXETER EDUCATIONAL MANAGEMENT SYSTEMS, INC.

GL TRADE OVERSEAS, INC.

INFLOW LLC

ONLINE SECURITIES PROCESSING INC.

SIS EUROPE HOLDINGS LLC

SRS DEVELOPMENT INC.

SUNGARD AMBIT LLC

SUNGARD ASIA PACIFIC INC.

SUNGARD AVAILABILITY SERVICES LP

SUNGARD AVAILABILITY SERVICES LTD.

SUNGARD AVANTGARD LLC

SUNGARD BUSINESS SYSTEMS LLC

SUNGARD COMPUTER SERVICES LLC

SUNGARD CONSULTING SERVICES LLC

SUNGARD CSA LLC

SUNGARD DEVELOPMENT CORPORATION

SUNGARD DIS INC.

SUNGARD ENERGY SYSTEMS INC.

SUNGARD EPROCESS INTELLIGENCE LLC

SUNGARD FINANCIAL SYSTEMS LLC

SUNGARD HIGHER EDUCATION INC.

SUNGARD HIGHER EDUCATION MANAGED SERVICES INC.

SUNGARD INVESTMENT SYSTEMS LLC

SUNGARD INVESTMENT VENTURES LLC

SUNGARD IWORKS LLC

SUNGARD IWORKS P&C (US) INC.

SUNGARD KIODEX LLC

SUNGARD NETWORK SOLUTIONS INC.

SUNGARD PUBLIC SECTOR INC.

SUNGARD REFERENCE DATA SOLUTIONS LLC

SUNGARD SAS HOLDINGS INC.

SUNGARD SECURITIES FINANCE LLC

SUNGARD SECURITIES FINANCE INTERNATIONAL LLC

SUNGARD SHAREHOLDER SYSTEMS LLC

SUNGARD SOFTWARE, INC.

SUNGARD SYSTEMS INTERNATIONAL INC.

SUNGARD TECHNOLOGY SERVICES LLC

SUNGARD VERICENTER, INC.

SUNGARD VPM INC.




Signature Page to Senior Indenture



 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	SUNGARD WORKFLOW SOLUTIONS LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Eric G. Erickson	 	 
	 

	 	 	 	Title:
	 	Vice President & Assistant Secretary	 	 






Signature Page to Senior Indenture



 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON,	 	 
	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






Signature Page to Senior 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 Temporary Global Note Legend, if applicable pursuant to the
provisions of the Indenture]


 


A-1









 





CUSIP [          ]

ISIN [          ]1




[[RULE 144A][REGULATION S] GLOBAL NOTE

[representing up to

$______________]2

75/8% Senior Notes due 2020




No. ___




SUNGARD DATA SYSTEMS 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]3 on November 15, 2020.



Interest Payment Dates: May 15 and November 15




Record Dates: May 1 and November 1



 






	 	 	 
	1	 	Rule 144A Note CUSIP: 867363AS2

Rule 144A Note ISIN: US867363AS27

Regulation S Note CUSIP: U86687AH0

Regulation S Note ISIN: USU86687AH03
	 
	2	 	Not to be included on Global Note
	 
	3	 	Not to be included on Global Note



 


A-2









 









IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.



Dated: [          ], 20[__]



	 	 	 	 	 	 	 	 	 
	 	 	SUNGARD DATA SYSTEMS INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 





 


A-3









 





This is one of the Notes referred to in the within-mentioned Indenture:



	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON,
	 	 	as Trustee
	 
	 	 	 	 
	Dated: [          ], 20[__]
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory





 


A-4









 





[Back of Note]




75/8% Senior Notes due 2020




Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



1. INTEREST. SunGard Data Systems Inc., a Delaware corporation, promises to pay interest on
the principal amount of this Note at 75/8% per annum from November 16, 2010 until maturity and shall
pay the Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred
to below. The Issuer will 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 Notes will
accrue from the most recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that the first Interest Payment Date shall be May 15,
2011. The Issuer will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the
interest rate on the Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest,
if any, (without regard to any applicable grace periods) from time to time on demand at the
interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.



2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes and Additional Interest, if
any, to the Persons who are registered Holders of Notes at the close of business on the May 1 or
November 1 (whether or not a Business Day), as the case may be, next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest.
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, provided that payment by wire
transfer of immediately available funds will be required with respect to principal of and interest,
premium and Additional Interest, if any, on, all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the Issuer 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.



3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, the Trustee under the
Indenture, will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or
Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such
capacity.



4. INDENTURE. The Issuer issued the Notes under an Indenture, dated as of November 16, 2010
(the “Indenture”), among SunGard Data Systems Inc., the Guarantors named therein and the
Trustee. This Note is one of a duly authorized issue of notes of the Issuer designated as its 75/8%
Senior Notes due 2020. The Issuer shall be entitled to issue Additional Notes pursuant to
Section 2.01 and 4.09 of the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”). The 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 Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.


 


A-5









 






5. OPTIONAL REDEMPTION.



(a) Except as described below under clauses 5(b) and 5(c) hereof, the Notes will not be
redeemable at the Issuer’s option before November 15, 2015.



(b) At any time prior to November 15, 2015, the Issuer may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail or delivered
by electronic transmission to the registered address of each Holder of Notes, at a redemption price
equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest and Additional Interest, if any, to the date of redemption (the
“Redemption Date”), subject to the rights of Holders of Notes on the relevant Record Date
to receive interest due on the relevant Interest Payment Date.



(c) Until November 15, 2013, the Issuer may, at its option, on one or more occasions redeem up
to 35% of the aggregate principal amount of Notes at a redemption price equal to 107.625% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon and Additional
Interest, if any, to the applicable Redemption Date, subject to the right of Holders of Notes of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date,
with the net cash proceeds of one or more Equity Offerings; provided that at least 50% of
the sum of the aggregate principal amount of Notes originally issued under the Indenture and any
Additional Notes issued under the Indenture after the Issue Date remains outstanding immediately
after the occurrence of each such redemption; provided further that each such
redemption occurs within 90 days of the date of closing of each such Equity Offering.



(d) On and after November 15, 2015, the Issuer may redeem the Notes, in whole or in part, upon
not less than 30 nor more than 60 days’ prior notice by first-class mail, postage prepaid, or by
electronic transmission with a copy to the Trustee, to each Holder of Notes at the address of such
Holder appearing in the security register, at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of Notes of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date, if redeemed during the twelve-month period beginning on November 15, of each
of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage	 
	2015
	 	 	103.813	%
	2016
	 	 	102.542	%
	2017
	 	 	101.271	%
	2018 and thereafter
	 	 	100.000	%






(e) Any notice of redemption may be subject to one or more conditions precedent, including,
but not limited to, completion of an Equity Offering or other corporate transaction.



(f) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.



6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.


 


A-6









 





7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will
be mailed by first-class mail or delivered by electronic transmission at least 30 days but not more
than 60 days before the redemption date (except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with Article 8
or Article 11 of the Indenture) to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed.
On and after the redemption date interest ceases to accrue on Notes or portions thereof called for
redemption.




8. OFFERS TO REPURCHASE.



(a) Upon the occurrence of a Change of Control, the Issuer shall make an offer (a “Change
of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Additional Interest thereon, if any,
to the date of purchase (the “Change of Control Payment”). The Change of Control Offer
shall be made in accordance with Section 4.14 of the Indenture.



(b) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale, within 10
Business Days of each date that Excess Proceeds exceed $100.0 million, the Issuer shall commence,
an offer to all Holders of the Notes and, if required by the terms of any Indebtedness that is pari
passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu
Indebtedness (an “Asset Sale Offer”), to purchase the maximum principal amount of Notes
(including any Additional Notes) and such other Pari Passu Indebtedness that may be purchased out
of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date fixed
for the closing of such offer, in accordance with the procedures set forth in the Indenture. To
the extent that the aggregate amount of Notes (including any Additional Notes) and such Pari Passu
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer
may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants
contained in the Indenture. If the aggregate principal amount of Notes or the Pari Passu
Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis based
on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered.
Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Issuer prior to any related purchase date and may elect to have such Notes purchased by
completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.



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



10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for
all purposes.



11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.


 


A-7









 





12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section
6.01 of the Indenture. If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 30% in principal amount of the then outstanding Notes may declare the
principal, premium, if any, interest and any other monetary obligations on all the then outstanding
Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable immediately without further action or notice. Holders may not enforce the
Indenture, the Notes or the Guarantees except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any continuing Default (except a Default relating to the payment of principal,
premium, if any, Additional Interest, if any, or interest) if it determines that withholding notice
is in their interest. The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or and its consequences under the Indenture except a continuing Default in payment
of the principal of, premium, if any, Additional Interest, if any, or interest on, any of the Notes
held by a non-consenting Holder. The Issuer and each Guarantor (to the extent that such Guarantor
is so required under the Trust Indenture Act) is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Issuer is required within five (5)
Business Days after becoming aware of any Default, to deliver to the Trustee a statement specifying
such Default and what action the Issuer proposes to take with respect thereto.



13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.



14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of Notes 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, among SunGard Data Systems Inc., the
Guarantors named therein and the other parties named on the signature pages thereof (the
“Registration Rights Agreement”), including the right to receive Additional Interest (as
defined in the Registration Rights Agreement).



15. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE GUARANTEES.



16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.


 


A-8









 





The Issuer will 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 the Issuer at the
following address:




680 East Swedesford Road

Wayne, Pennsylvania 19087

Fax No.: (610) 687-3725

Attention: General Counsel


 


A-9









 





ASSIGNMENT FORM





To assign this Note, fill in the form below:



	 	 	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 	 	 
	 

	 	 

(Insert assignee’ 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 Note on the books of the Issuer. The agent may substitute another to act for him.




	 	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 

	 	 	 	 

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






	 	 	 	 	 
	Signature Guarantee*: 

	 	 

 

	 	 








	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).



 


A-10









 





OPTION OF HOLDER TO ELECT PURCHASE




If you want to elect to have this Note purchased by the Issuer 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 this Note purchased by the Issuer 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
Note)

	 	 
	 
	 	 	 	 	 	 
	 

	 	Tax Identification No.:	 	 	 	 






	 	 	 	 	 
	Signature Guarantee*: 

	 	 	 	 








	 	 	 
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).



 


A-11









 









SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*




The initial outstanding principal amount of this Global Note is $_____.
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 or Definitive Note for an interest in this Global
Note, have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	of	 	 	 	 
	 	 	 	 	Amount of	 	 	Amount of increase	 	 	this Global Note	 	 	Signature of	 
	 	 	 	 	decrease	 	 	in Principal	 	 	following such	 	 	authorized officer	 
	Date of	 	 	in Principal	 	 	Amount of this	 	 	decrease or	 	 	of Trustee or	 
	Exchange	 	 	Amount	 	 	Global Note	 	 	increase	 	 	Note Custodian	 




 






	 	 	 
	*	 	This schedule should be included only if the Note is issued in global form.





 


A-12









 







EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Sungard Data Systems Inc.

680 East Swedesford Road

Wayne, Pennsylvania 19087

Fax No.: (610) 687-3725

Attention: General Counsel




The Bank of New York Mellon

101 Barclay Street, Floor 8W

New York, New York 10286

Fax No.: (212) 815-5704

Attention: Corporate Trust Administration





Re: 75/8% Senior Notes due 2020



Reference is hereby made to the Indenture, dated as of November 16, 2010 (the
“Indenture”), among SunGard Data Systems Inc., the Guarantors named therein and the
Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.




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



[CHECK ALL THAT APPLY]




1. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL
NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably 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.


 


B-1









 





2. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 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 Restricted 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). 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 Indenture and the Securities Act.



3. o CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
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):




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



or





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



or





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



4. o CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.



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


 


B-2









 





(b) o 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 (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.



(c) o CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, 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 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-3









 





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



	 	 	 	 	 	 	 
	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Dated: ___________




 


B-4









 





ANNEX A TO CERTIFICATE OF TRANSFER




1. The Transferor owns and proposes to transfer the following:



[CHECK ONE OF (a) OR (b)]




(a) o a beneficial interest in the:




(i) o 144A Global Note (CUSIP 867363AP8), or




(ii) o Regulation S Global Note (CUSIP U86687AG2), or



(b) o a Restricted Definitive Note.



2. After the Transfer the Transferee will hold:



[CHECK ONE]




(a) o a beneficial interest in the:




(i) o 144A Global Note (CUSIP 867363AP8), or




(ii) o Regulation S Global Note (CUSIP U86687AG2), or




(iii)
o Unrestricted Global Note (CUSIP _______); or



(b) o a Restricted Definitive Note; or



(c) o an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.


 


B-5









 







EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




SunGard Data Systems Inc.

680 East Swedesford Road

Wayne, Pennsylvania 19087

Fax No.: (610) 687-3725

Attention: General Counsel




The Bank of New York Mellon

101 Barclay Street, Floor 8W

New York, New York 10286

Fax No.: (212) 815-5704

Attention: Corporate Trust Administration





Re: 75/8% Senior Notes due 2020



Reference is hereby made to the Indenture, dated as of November 16, 2010 (the
“Indenture”), among SunGard Data Systems Inc., the Guarantors named therein and the
Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.




 _____ 

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



1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE
FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE




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


 


C-1









 






b) o CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act and
(iv) the Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.




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




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



2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES




a) o CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the Securities Act.


 


C-2









 






b) o CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [
] 144A Global Note [ ] Regulation S Global Note, with an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global Notes
and pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.



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



	 	 	 	 	 	 	 	 	 
	 	 	[Insert Name of Transferor]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






Dated: _______________________





 


C-3









 







EXHIBIT D




[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 SunGard Data Systems
Inc., a Delaware Corporation (the “Issuer”), and The Bank of New York Mellon, as trustee
(the “Trustee”).



W I T N E S S E T H




WHEREAS, each of SunGard Data Systems Inc. and the Guarantors (as defined in the Indenture
referred to below) has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of November 16, 2010, providing for the issuance of an unlimited
aggregate principal amount of 75/8% Senior Notes due 2020 (the “Notes”);



WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the
“Guarantee”); and



WHEREAS, pursuant to Section 9.01 of the Indenture, the 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 parties mutually covenant and agree
for the equal and ratable benefit of the Holders of the Notes as follows:



(1) Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.




(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:




(a) Along with all Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or
thereunder, that:




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




(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that 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 and the Guaranteeing Subsidiary shall be jointly and severally obligated to pay the same
immediately. This is a guarantee of payment and not a guarantee of collection.


 


D-1









 






(b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.




(c) The following is hereby waived, to the extent permitted by law: diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever.




(d) This Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.




(e) If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or the
Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.




(f) 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.




(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guaranteeing
Subsidiary for the purpose of this Guarantee.




(h) 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 the
Holders under this Guarantee.




(i) Pursuant to Section 10.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance 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 10 of the Indenture, this new
Guarantee shall be limited to the maximum amount permissible such that the obligations of
such Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent transfer
or conveyance.


 


D-2









 






(j) This Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation, reorganization,
should the Issuer become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the Issuer’s
assets, and shall, to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Notes and Guarantee, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such payment or performance had not been
made. In the event that any payment or any part thereof, is rescinded, reduced, restored or
returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.




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




(l) This Guarantee shall be a general unsecured senior obligation of such Guaranteeing
Subsidiary, ranking pari passu with any other future Senior Indebtedness of the Guaranteeing
Subsidiary, if any.




(m) Each payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.



(3) Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee
shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantee on the Notes.




(4) Merger, Consolidation or Sale of All or Substantially All Assets.



(a) Except as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether or not the Issuer or
Guaranteeing Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:




(i) (A) the Guaranteeing Subsidiary is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Guaranteeing Subsidiary)
or to which such sale, assignment, transfer, lease, conveyance or other disposition will
have been made is a corporation organized or existing under the laws of the jurisdiction of
organization of the Guaranteeing Subsidiary, as the case may be, or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof (the
Guaranteeing Subsidiary or such Person, as the case may be, being herein called the
“Successor Person”);




(B) the Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes
all the obligations of the Guaranteeing Subsidiary under the Indenture and the Guaranteeing
Subsidiary’s related Guarantee pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Trustee;




(C) immediately after such transaction, no Default exists; and


 


D-3









 






(D) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with the Indenture; or




(ii) the transaction is made in compliance with Section 4.10 of the Indenture;



(b) Subject to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s Guarantee. Notwithstanding the foregoing, the Guaranteeing Subsidiary
may merge into or transfer all or part of its properties and assets to another Guarantor or the
Issuer.




(5) Releases.



The Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally
released and discharged, and no further action by the Guaranteeing Subsidiary, the Issuer or the
Trustee is required for the release of the Guaranteeing Subsidiary’s Guarantee, upon:




(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock
of the Guaranteeing Subsidiary (including any sale, exchange or transfer), after which the
Guaranteeing Subsidiary is no longer a Restricted Subsidiary or all or substantially all the
assets of the Guaranteeing Subsidiary which sale, exchange or transfer is made in compliance
with the applicable provisions of the Indenture;




(B) the release or discharge of the guarantee by the Guaranteeing Subsidiary of the
Senior Credit Facilities or the guarantee which resulted in the creation of the Guarantee,
except a discharge or release by or as a result of payment under such guarantee;




(C) the proper designation of the Guaranteeing Subsidiary as an Unrestricted
Subsidiary; or




(D) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article 8 of the Indenture or the Issuer’s obligations under the Indenture
being discharged in accordance with the terms of the Indenture; and




(2) the Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for in the
Indenture relating to such transaction have been complied with.



(6) No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the
Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting Notes waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.



(7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



(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.


 


D-4









 





(9) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



(10) The Trustee. The 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.



(11) Subrogation. The Guaranteeing Subsidiary shall be subrogated to all rights of
Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary
pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided
that, if an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not
be entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under the Indenture or the Notes
shall have been paid in full.



(12) Benefits Acknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to the
terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it
will receive direct and indirect benefits from the financing arrangements contemplated by the
Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to
this Guarantee are knowingly made in contemplation of such benefits.



(13) Successors. All agreements of the Guaranteeing Subsidiary in this Supplemental
Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.


 


D-5









 





IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	[GUARANTEEING SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON, as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 







 


D-6