exv10w3






Exhibit 10.3




INDENTURE




Among




BRIGHTSTAR CORP.




THE GUARANTORS NAMED IN SCHEDULE I HERETO




and




DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Trustee




9.500% SENIOR NOTES DUE 2016




Dated as of November 30, 2010





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 	 	 
	Definitions and Incorporation by Reference

	 
	 	 	 	 	 	 
	SECTION 1.01.

	 	Definitions
	 	 	1	 
	SECTION 1.02.

	 	Other Definitions
	 	 	33	 
	SECTION 1.03.

	 	Incorporation by Reference of Trust Indenture Act
	 	 	34	 
	SECTION 1.04.

	 	Rules of Construction
	 	 	34	 
	SECTION 1.05.

	 	Acts of Holders
	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	The Notes

	 
	 	 	 	 	 	 
	SECTION 2.01.

	 	Form and Dating; Terms
	 	 	36	 
	SECTION 2.02.

	 	Execution and Authentication
	 	 	38	 
	SECTION 2.03.

	 	Registrar and Paying Agent
	 	 	38	 
	SECTION 2.04.

	 	Paying Agent To Hold Money in Trust
	 	 	39	 
	SECTION 2.05.

	 	Holder Lists
	 	 	39	 
	SECTION 2.06.

	 	Transfer and Exchange
	 	 	39	 
	SECTION 2.07.

	 	Replacement Notes
	 	 	52	 
	SECTION 2.08.

	 	Outstanding Notes
	 	 	52	 
	SECTION 2.09.

	 	Treasury Notes
	 	 	53	 
	SECTION 2.10.

	 	Temporary Notes
	 	 	53	 
	SECTION 2.11.

	 	Cancellation
	 	 	53	 
	SECTION 2.12.

	 	Defaulted Interest
	 	 	54	 
	SECTION 2.13.

	 	CUSIP Numbers; ISIN Numbers
	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	Redemption

	 
	 	 	 	 	 	 
	SECTION 3.01.

	 	Notices to Trustee
	 	 	54	 
	SECTION 3.02.

	 	Selection of Notes To Be Redeemed or Purchased
	 	 	55	 
	SECTION 3.03.

	 	Notice of Redemption
	 	 	55	 
	SECTION 3.04.

	 	Effect of Notice of Redemption
	 	 	56	 
	SECTION 3.05.

	 	Deposit of Redemption or Purchase Price
	 	 	56	 
	SECTION 3.06.

	 	Notes Redeemed or Purchased in Part
	 	 	57	 
	SECTION 3.07.

	 	Optional Redemption
	 	 	57	 
	SECTION 3.08.

	 	Mandatory Redemption
	 	 	58	 
	SECTION 3.09.

	 	Offers To Repurchase by Application of Excess Proceeds
	 	 	58	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	Covenants

	 
	 	 	 	 	 	 
	SECTION 4.01.

	 	Payment of Notes
	 	 	60	 
	SECTION 4.02.

	 	Maintenance of Office or Agency
	 	 	60	 
	SECTION 4.03.

	 	Reports and Other Information
	 	 	61	 
	SECTION 4.04.

	 	Compliance Certificate
	 	 	62	 
	SECTION 4.05.

	 	Taxes
	 	 	62	 
	SECTION 4.06.

	 	Stay, Extension and Usury Laws
	 	 	62	 
	SECTION 4.07.

	 	Limitation on Restricted Payments
	 	 	63	 
	SECTION 4.08.

	 	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	 	68	 
	SECTION 4.09.

	 	Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
	 	 	70	 
	SECTION 4.10.

	 	Limitation on Sales of Assets
	 	 	76	 
	SECTION 4.11.

	 	Transactions with Affiliates
	 	 	78	 
	SECTION 4.12.

	 	Liens
	 	 	80	 
	SECTION 4.13.

	 	Corporate Existence
	 	 	81	 
	SECTION 4.14.

	 	Offer To Repurchase Upon Change of Control
	 	 	81	 
	SECTION 4.15.

	 	Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
	 	 	82	 
	SECTION 4.16.

	 	Suspension of Covenants
	 	 	83	 
	SECTION 4.17.

	 	Limitation on Sale and Lease-Back Transactions
	 	 	83	 
	SECTION 4.18.

	 	Limitation on Line of Business
	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	Successors

	 
	 	 	 	 	 	 
	SECTION 5.01.

	 	Merger, Consolidation or Sale of All or Substantially All Assets
	 	 	84	 
	SECTION 5.02.

	 	Successor Corporation Substituted
	 	 	86	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	Defaults and Remedies

	 
	 	 	 	 	 	 
	SECTION 6.01.

	 	Events of Default
	 	 	86	 
	SECTION 6.02.

	 	Acceleration
	 	 	88	 
	SECTION 6.03.

	 	Other Remedies
	 	 	89	 
	SECTION 6.04.

	 	Waiver of Past Defaults
	 	 	89	 
	SECTION 6.05.

	 	Control by Majority
	 	 	89	 
	SECTION 6.06.

	 	Limitation on Suits
	 	 	89	 
	SECTION 6.07.

	 	Rights of Holders of Notes To Receive Payment
	 	 	90	 
	SECTION 6.08.

	 	Collection Suit by Trustee
	 	 	90	 
	SECTION 6.09.

	 	Restoration of Rights and Remedies
	 	 	90	 
	SECTION 6.10.

	 	Rights and Remedies Cumulative
	 	 	90	 
	SECTION 6.11.

	 	Delay or Omission Not Waiver
	 	 	90	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 6.12.

	 	Trustee May File Proofs of Claim
	 	 	91	 
	SECTION 6.13.

	 	Priorities
	 	 	91	 
	SECTION 6.14.

	 	Undertaking for Costs
	 	 	92	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	Trustee

	 
	 	 	 	 	 	 
	SECTION 7.01.

	 	Duties of Trustee
	 	 	92	 
	SECTION 7.02.

	 	Rights of Trustee
	 	 	93	 
	SECTION 7.03.

	 	Individual Rights of Trustee
	 	 	94	 
	SECTION 7.04.

	 	Trustee’s Disclaimer
	 	 	94	 
	SECTION 7.05.

	 	Notice of Defaults
	 	 	95	 
	SECTION 7.06.

	 	Reports by Trustee to Holders of the Notes
	 	 	95	 
	SECTION 7.07.

	 	Compensation and Indemnity
	 	 	95	 
	SECTION 7.08.

	 	Replacement of Trustee
	 	 	96	 
	SECTION 7.09.

	 	Successor Trustee by Merger, etc
	 	 	97	 
	SECTION 7.10.

	 	Eligibility; Disqualification
	 	 	97	 
	SECTION 7.11.

	 	Preferential Collection of Claims Against the Company
	 	 	97	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	Legal Defeasance and Covenant Defeasance

	 
	 	 	 	 	 	 
	SECTION 8.01.

	 	Option To Effect Legal Defeasance or Covenant Defeasance
	 	 	97	 
	SECTION 8.02.

	 	Legal Defeasance and Discharge
	 	 	97	 
	SECTION 8.03.

	 	Covenant Defeasance
	 	 	98	 
	SECTION 8.04.

	 	Conditions to Legal or Covenant Defeasance
	 	 	99	 
	SECTION 8.05.

	 	Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions
	 	 	100	 
	SECTION 8.06.

	 	Repayment to Company
	 	 	100	 
	SECTION 8.07.

	 	Reinstatement
	 	 	101	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 	 	 
	Amendment, Supplement and Waiver

	 
	 	 	 	 	 	 
	SECTION 9.01.

	 	Without Consent of Holders of Notes
	 	 	101	 
	SECTION 9.02.

	 	With Consent of Holders of Notes
	 	 	102	 
	SECTION 9.03.

	 	Complicance with Trust Indenture Act
	 	 	104	 
	SECTION 9.04.

	 	Revocation and Effect of Consents
	 	 	104	 
	SECTION 9.05.

	 	Notation on or Exchange of Notes
	 	 	104	 
	SECTION 9.06.

	 	Trustee To Sign Amendments, etc
	 	 	104	 
	SECTION 9.07.

	 	Payment for Consent
	 	 	105	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE X

	 
	 	 	 	 	 	 
	Guarantees

	 
	 	 	 	 	 	 
	SECTION 10.01.

	 	Guarantee
	 	 	105	 
	SECTION 10.02.

	 	Limitation on Guarantor Liability
	 	 	107	 
	SECTION 10.03.

	 	Execution and Delivery
	 	 	107	 
	SECTION 10.04.

	 	Subrogation
	 	 	107	 
	SECTION 10.05.

	 	Benefits Acknowledged
	 	 	108	 
	SECTION 10.06.

	 	Release of Guarantees
	 	 	108	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 	 	 
	Satisfaction and Discharge

	 
	 	 	 	 	 	 
	SECTION 11.01.

	 	Satisfaction and Discharge
	 	 	108	 
	SECTION 11.02.

	 	Application of Trust Money
	 	 	109	 
	 
	 	 	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 	 	 
	Miscellaneous

	 
	 	 	 	 	 	 
	SECTION 12.01.

	 	Trust Indenture Act Controls
	 	 	110	 
	SECTION 12.02.

	 	Notices
	 	 	110	 
	SECTION 12.03.

	 	Communication by Holders of Notes with Other Holders of Notes
	 	 	111	 
	SECTION 12.04.

	 	Certificate and Opinion as to Conditions Precedent
	 	 	111	 
	SECTION 12.05.

	 	Statements Required in Certificate or Opinion
	 	 	111	 
	SECTION 12.06.

	 	Rules by Trustee and Agents
	 	 	112	 
	SECTION 12.07.

	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	112	 
	SECTION 12.08.

	 	Governing Law
	 	 	112	 
	SECTION 12.09.

	 	Consent to Jurisdiction
	 	 	112	 
	SECTION 12.10.

	 	Waiver of Jury Trial
	 	 	112	 
	SECTION 12.11.

	 	Force Majeure
	 	 	112	 
	SECTION 12.12.

	 	No Adverse Interpretation of Other Agreements
	 	 	113	 
	SECTION 12.13.

	 	Successors
	 	 	113	 
	SECTION 12.14.

	 	Severability
	 	 	113	 
	SECTION 12.15.

	 	Counterpart Originals
	 	 	113	 
	SECTION 12.16.

	 	Table of Contents, Headings, etc
	 	 	113	 
	SECTION 12.17.

	 	Qualification of Indenture
	 	 	113	 






iv









 






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)

(b)

	 	 	N.A.

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 this Indenture.





v









 





          INDENTURE, dated as of November 30, 2010, among BRIGHTSTAR CORP., a Delaware corporation (the
“Company”), the Guarantors (as defined herein), each named in the signature pages hereto
and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee.




WITNESSETH:




          WHEREAS the Company has duly authorized the creation of an issue of $250,000,000 aggregate
principal amount of 9.500% Senior Notes due 2016 (the “Initial Notes”); and




          WHEREAS each of the Company and the Guarantors has 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 I




Definitions and Incorporation by Reference




          SECTION 1.01. Definitions.




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




          “Acquired 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 issued from time to time under this
Indenture in accordance with Sections 2.01 and 4.09 hereof.




 









 








          “Adjusted Treasury Rate” means, with respect to any redemption date, (i) the yield,
under the heading which represents the average for the immediately preceding week, appearing in the
most recently published statistical release designated “H.15(519)” or any successor publication
which is published weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption “Treasury Constant Maturities”, for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after December 1, 2014,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined by the Company and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if
such release (or any successor release) is not published during the week preceding the calculation
date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield
to maturity of the Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date, in each case calculated on the
third Business Day immediately preceding the redemption date, plus 0.50%.




          “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.




          “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.




          “Applicable Premium” means with respect to a Note at any redemption date, the greater
of (i) 1.00% of the principal amount of such Note and (ii) the excess of (A) the present value at
such redemption date of (1) the redemption price of such Note on December 1, 2014 (such redemption
price being set forth in Section 3.07(c) exclusive of any accrued interest), plus (2) all required
remaining scheduled interest payments due on such Note through December 1, 2014 (but excluding
accrued and unpaid interest to the redemption date), computed using a discount rate equal to the
Adjusted Treasury Rate, over (B) the principal amount of such Note on such redemption date.




          “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 Company or any of its Restricted Subsidiaries
(each referred to in this definition as a “disposition”); or



2









 






     (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 hereof),
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 Company in a
manner permitted pursuant to the provisions set forth 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;




     (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 $10.0 million;




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




     (f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986 or
comparable law or regulation, 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 and any Sale and Lease-back Arrangements;




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




     (i) foreclosures on assets; and




     (j) the discounting, factoring or sale (with or without recourse) of accounts
receivable consistent with past practice.



          “Attributable Debt” in respect of a Sale and Lease-Back Transaction means, as at the
time of determination, the present value (discounted at the interest rate borne by the Notes,
compounded annually) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and Lease-Back Transaction (including any period
for which such lease has been extended); provided, however, that if such Sale and
Lease-Back Transaction results in a Capital Lease Obligation, the amount of Indebtedness
represented thereby will be determined in accordance with the definition of “Capitalized Lease
Obligation.”




3









 








          “Brightstar Europe” means Brightstar Europe, Limited, a joint venture between the
Company and Tech Data Corporation, and any other joint venture between the Company or any of its
Subsidiaries and Tech Data Corporation or any of its Subsidiaries.




          “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding
up, liquidation, reorganization or 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)
prepared in accordance with GAAP.




          “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 any such government or
entity with maturities of 12 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



4









 







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 set forth 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 12 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 12 months after the date of creation thereof;




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




     (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 12 months or
less from the date of acquisition.



          Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in
currencies other than those set forth in clauses (1) and (2) above; provided,
however, 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 merger or consolidation of the Company with or into another Person or the
merger of another Person with or into the Company, or the sale of all or substantially all
the assets of the Company (determined on a consolidated basis) to another Person other than
(i) a transaction in which the survivor or transferee is a Person that is controlled by the
Permitted Holders or (ii) a transaction following which holders of the Voting Stock of the
Company immediately prior to such transaction (or other securities into which such
securities are converted as part of such merger or consolidation transaction) own directly
or indirectly at least a majority of the voting power of the Voting Stock of the surviving
or transferee Person in such transaction immediately after such transaction and in
substantially the same proportion as before the transaction; or




     (2) the Company 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



5









 







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 Company.



          Notwithstanding the foregoing, the creation of a holding company to hold the Capital Stock of
the Company, a majority of the Voting Stock of which is held by holders of the Voting Stock of the
Company immediately prior to such transaction, shall not be deemed a Change of Control.




          “Clearstream” means Clearstream Banking, Société Anonyme.




          “Company” has the meaning set forth in the first preamble to this Indenture; provided
until a successor replaces it and, thereafter, means the successor; provided,
however, that when used in the context of determining the fair market value of an asset or
liability under this Indenture, “Company” shall be deemed to mean the board of directors of the
Company when the fair market value is equal to or in excess of $20.0 million (unless otherwise
expressly stated).




          “Company Equity Plan” means any management equity or stock option or ownership plan or
any other management or employee benefit plan of the Company or any Subsidiary of the Company.




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




          “Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes from the
redemption date to December 1, 2014, that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
a maturity most nearly equal to December 1, 2014.




          “Comparable Treasury Price” means, with respect to any redemption date, if clause (ii)
of the Adjusted Treasury Rate is applicable, the average of three, or such lesser number as is
obtained by the Company, Reference Treasury Dealer Quotations for such redemption date.




          “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 of such Person and its Restricted Subsidiaries for such
period on a consolidated basis and otherwise determined in accordance with GAAP.




6









 








          “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 resulting
from the issuance of Indebtedness at less than par, (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, (e) the
interest portion of rent expense associated with Attributable Debt in respect of the
relevant lease giving rise thereto, determined as if such lease were a capitalized lease in
accordance with GAAP, (f) net payments, if any, pursuant to interest rate Hedging
Obligations with respect to Indebtedness, and (g) interest accruing on any Indebtedness of
any other Person to the extent such Indebtedness is Guaranteed by (or secured by a Lien on
the assets of) the Company or any Restricted Subsidiary, and excluding (t) accretion or
accrual of discounted liabilities other than Indebtedness, (u) any expense resulting from
the discounting of any Indebtedness in connection with the application of purchase
accounting in connection with any acquisition, (v) interest expense relating to the Debt
Exclusions, (w) amortization of deferred financing fees, debt issuance costs, commissions,
fees and expenses, and (x) any expensing of bridge, commitment and other financing fees;
plus




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




     (3) consolidated interest income of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued.



          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 the Company for any period, the
aggregate of the Net Income of the Company and the 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 extraordinary expenses, severance,
relocation costs and curtailments or modifications to pension and post-retirement employee
benefit plans shall be excluded;




     (2) the cumulative effect of a change in accounting principles during such period shall
be excluded;



7









 






     (3) any after-tax effect of income (loss) from disposed, abandoned, transferred, closed
or discontinued operations and any net after-tax gains or losses on disposal of disposed,
abandoned, transferred, closed 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 Company, 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, however, that Consolidated Net Income of the Company
shall be increased by (a) the amount of dividends or distributions that are actually paid in
cash (or to the extent converted into cash) to the Company or, subject to clause (6) below,
a Restricted Subsidiary thereof in respect of such period and (b) its share of Net Income of
Brightstar Europe;




     (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 a Guarantor or a Foreign Subsidiary) 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 or unless and to the extent that the Company
or another Restricted Subsidiary not subject to a similar prohibition actually received from
such Restricted Subsidiary dividends or other distributions in cash (or to the extent
converted into cash) in respect of such period;




     (7) any effects of adjustments (including the effects of such adjustments pushed down
to the Company and its Restricted Subsidiaries) in the property and equipment, inventory,
intangible assets, deferred revenue and debt line items in such Person’s consolidated
financial statements pursuant to GAAP resulting from 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 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; and



8









 






     (11) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, disposition, Investment, Asset Sale,
issuance or repayment of Indebtedness, issuance of Equity Interests (including a potential
initial public offering), refinancing transaction or amendment or modification of any debt
instrument (in each case, consummated prior to the Issue Date or commenced but not completed
prior to the Issue Date) and any charges or non-recurring costs incurred during such period
as a result of any such transaction 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 (other than to the Company or a Restricted Subsidiary)
of any Restricted Investment (other than an Investment in an Unrestricted Subsidiary) made after
the Issue Date by the Company and its Restricted Subsidiaries, and any repayment, repurchase or
redemption of any Restricted Investment (including any release of any guarantee, which constitutes
such a Restricted Investment), any sale (other than to the Company or a Restricted Subsidiary) 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.




          “Consolidated Net Secured Debt Ratio” as of any date of determination means, the ratio
of (1) the excess of (x) Consolidated Total Indebtedness of the Company 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 over (y) an amount equal to the amount of cash and
Cash Equivalents of the Company and its Restricted Subsidiaries on such date to (2) the Company’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 Net Tangible Assets” means the total amount of assets (less applicable
reserves and other properly deductible items) after deducting (i) all current liabilities
(excluding the amount of those which are by their terms extendable or renewable at the option of
the obligor to a date more than 12 months after the date as of which the amount is being determined
and the current portion of long-term debt) and (2) all goodwill, tradenames, patents, unamortized
debt discount and expense and other intangible assets, all as set forth on the most recent balance
sheet of the Company and its consolidated Restricted Subsidiaries and determined in accordance with
GAAP.




          “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 Company and its
Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money,
Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by
promissory notes and similar instruments and (2) the aggregate amount of all outstanding
Disqualified Stock of the Company and all Preferred Stock of the Restricted



9









 






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 Company.




          “Contingent Obligations” means, with respect to any Person, any obligation of such
Person guaranteeing any obligations that do not constitute Indebtedness (“primary obligations”) of
any other Person (the “primary obligor”) in any manner, whether directly or indirectly,
including 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.



          “Contribution Debt” means Indebtedness, Disqualified Stock or Preferred Stock of the
Company or any Guarantor in an aggregate principal amount or liquation preference not greater than
twice the aggregate amount of cash received from the issuance and sale of Qualified Equity
Interests of the Company or a capital contribution to the common equity of the Company;
provided, however, that:





     (1) such cash contributions have not been used to make a Restricted Payment and shall
thereafter be excluded from any calculation under clause (3)(B) of Section 4.07 hereof and
may not be counted as equity proceeds for purposes of any payment made under Section 4.07(a)
or any Permitted Investment that is permitted to be made out of equity proceeds (it being
understood that if any such Indebtedness, Disqualified Stock or Preferred Stock incurred as
Contribution Debt (or as Refinancing Indebtedness in respect of Contribution Debt) is
redesignated as incurred under any provision other than clause (12)(a) (or clause (13), as
applicable) under Section 4.09 the related issuance of Equity Interests may be included in
any calculation under such clause (3)(B); it being further understood, however, that any
Refinancing Indebtedness incurred pursuant to clause (13) under Section 4.09 in respect of
Contribution Debt shall not constitute a redesignation of Contribution Debt for purposes of
the foregoing);



10









 






     (2) such Contribution Debt is unsecured and, if the aggregate principal amount of such
Contribution Debt is greater than the aggregate amount of such cash contributions to the
capital of the Company or such Guarantor, the amount of Debt in excess of such amount shall
be Subordinated Indebtedness and have a Stated Maturity later than the Stated Maturity of
the Notes; and




     (3) such Contribution Debt (a) is Incurred within 180 days after the making of such
cash contributions (other than with respect to any refinancing thereof) and (b) is so
designated as Contribution Debt pursuant to an Officer’s Certificate on the incurrence date
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 Company.




          “Credit Facilities” means, with respect to the Company or any of its Restricted
Subsidiaries, one or more debt facilities, including the Senior Credit Facilities, or other
financing arrangements (including credit facilities, commercial paper facilities, securities
purchase agreements 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, replacements (including after termination of the
predecessor credit agreement) restatements or Refinancings thereof and any credit facilities,
commercial paper facilities, securities or indentures that Refinance any part of the loans, notes,
other credit facilities or commitments thereunder, including any such Refinancing facility or
indenture that increases the amount permitted to be borrowed thereunder or alters the maturity
thereof (provided, however, 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, investor or group of lenders or
investors.




          “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 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.




11









 








          “Designated Non-cash Consideration” means the fair market value of non-cash
consideration received by the Company 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 Company, 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 Company 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
Company 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 Company 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 Equity Interests which by
its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder) or upon the happening of any event:





     (1) matures or is mandatorily redeemable (other than redeemable only for Equity
Interests of such Person which is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise;




     (2) is convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Stock; or




     (3) is mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise, in whole or in part;


in each case on or prior to the date 91 days after the Stated Maturity of the Notes;
provided, however, that any Equity Interests that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to require such Person to
purchase or redeem such Equity Interests upon the occurrence of an “asset sale” or “change of
control” occurring prior to the date 91 days after the Stated Maturity of the Notes shall not
constitute Disqualified Stock if:





     (1) the “asset sale” or “change of control” provisions applicable to such Equity
Interests are not more favorable to the holders of such Equity Interests than the terms
applicable to the Notes and set forth in Sections 4.10 and 4.14; and




     (2) any such requirement only becomes operative after compliance with such terms
applicable to the Notes, including the purchase of any Notes tendered pursuant thereto;


provided further, however, that no series of preferred stock of the Company
outstanding on the Issue Date shall be deemed Disqualified Stock. The Company shall not consummate
a change of control offer for any such stock in connection with a “change of control” until after
it consummates a Change of Control Offer for the Notes or calls all the Notes for redemption.




12









 








          “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 the following to the extent the following were
deducted in calculating Consolidated Net Income and not added back:




     (a) provision for taxes based on income or profits or capital, including state,
franchise and similar taxes and foreign withholding taxes of such Person accrued
during such period deducted;




     (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;




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




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




     (e) any other non-cash charges, including any write off or write downs, for
such period (provided, however, 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); and




     (f) 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 in such period;




     (2) decreased by (without duplication) non-cash gains (excluding, for the avoidance of
doubt, any non-cash gains of Brightstar Europe) 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 unrealized gain or loss in such period from Hedging Obligations or
foreign exchange, 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).



13









 





          “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.




          “Equity Offering” means any public or private sale for cash of Qualified Equity
Interests of the Company, other than public offerings with respect to the Company’s common stock
registered on Form S-8.




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




          “Euroclear” means Euroclear 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 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 Company from:





     (1) contributions to its common equity capital, and




     (2) the sale of Qualified Equity Interests of the Company,


in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by
the principal financial officer of the Company 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.




          “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 Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
defeases, 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, defeasance, 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.




14









 








          For purposes of making the computation referred to above, any Investments, acquisitions,
dispositions, mergers or consolidations that have been made by the Company 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 and consolidations (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 Company or any of its Restricted Subsidiaries since the
beginning of such period shall have made any Investment, acquisition, disposition, merger or
consolidation that would have required adjustment pursuant to this definition, then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if
such Investment, acquisition, disposition, merger, consolidation had occurred at the beginning of
the applicable four-quarter period.




          For purposes of this definition, whenever pro forma effect is to be given to a transaction,
the pro forma calculations shall be made in good faith by a responsible financial or accounting
officer of the Company (and may include Pro Forma Cost Savings). 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 Company 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 Company may designate.




          “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 dividends or other distributions actually paid (excluding items eliminated in
consolidation and excluding the payment of dividends or other distributions in the form of
additional shares of the same series of Preferred Stock or in the form of other Capital
Stock not constituting Disqualified Stock) on any series of Preferred Stock during such
period; and



15









 






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


provided, however, that Fixed Charges shall exclude any cash dividends on Preferred
Stock paid, up to a maximum aggregate amount of $50.0 million, upon completion of an initial public
offering or upon a refinancing of the Company’s revolving credit facility.




          “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 the Issue Date.




          “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 hereto,
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, however, 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.




16









 








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




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




          “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 obligations until
such obligation becomes a liability on the balance sheet of such Person in
accordance with GAAP;




     (d) representing any Hedging Obligations; or




     (e) Attributable Debt;




whether or not appearing as a liability upon the balance sheet 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) another Person (whether or not such items would appear upon the balance
sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments
for collection in the ordinary course of business; and



17









 






     (3) to the extent not otherwise included, the obligations of the type referred to in
clause (1) of another 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), the amount of such
obligation being deemed to be the lesser of the fair market value of such property or assets
and the amount of the obligation so secured;


provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed
not to include (a) Contingent Obligations incurred in the ordinary course of business, (b)
non-recourse factoring of accounts receivable, regardless of whether GAAP requires it to be
accounted for as debt, (c) trade payables regardless of whether such Person or its Restricted
Subsidiaries is required to pay interest thereon (including obligations to Motorola under the
Motorola Documents), or liabilities arising from advance payments or customer deposits for goods
and services sold in the ordinary course of business, (d) trade payables owed by such Person or its
Restricted Subsidiaries to a manufacturer that a manufacturer sells to a financial institution
(i.e., unsecured vendor financing), or (e) indebtedness under the VZ/BZ Aladi Arrangement
(collectively, the “Debt Exclusions”); provided, however, that such items
shall constitute Indebtedness for purpose of clause (i) under Section 4.08.




          “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 Company, qualified to perform the task for which it has been
engaged.




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




          “Initial Notes” shall have the meaning set forth in the recitals.




          “Initial Purchasers” means Jefferies & Company, Inc., Goldman, Sachs & Co. and J.P.
Morgan Securities LLC.




          “Interest Payment Date” means June 1 and December 1 of each year.




          “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 Company and its
Subsidiaries;



18









 






     (3) investments in any fund that invests exclusively in investments of the type set
forth 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 Company 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 Company’s equity
interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a permanent
“Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:




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




     (b) the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation; and




     (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 Company.



          “Investors” means R. Marcelo Claure and his Permitted Assigns, and each of Lindsay
Goldberg LLC, Mitsui & Co., Ltd, Falcon Investment Advisors, LLC and Prudential Capital Partners,
LP, and their respective Affiliates, but not including, however, any portfolio companies of any of
the foregoing.




          “Issue Date” means November 30, 2010.




          “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.




19









 








          “Letter of Transmittal” means the letter of transmittal to be prepared by the Company
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, however, 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.




          “Motorola Documents” means the Third Amended and Restated Payment Terms Agreement,
dated as of September 28, 2009, among Motorola, Inc., in its capacity as agent for itself and for
the other Motorola Parties referred to therein, the Company, and the others persons party thereto,
and all other agreements between Motorola Inc. and the Company or any of its Restricted
Subsidiaries as in effect on the Issue Date and as each may be amended, modified, restated,
renewed, refinanced or replaced from time to time.




          “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.




          “Net Proceeds” means the aggregate cash proceeds received by the Company 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 Indebtedness (other than Subordinated 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 Company 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 Company 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.




20









 








          “Notes” means the Initial Notes and any other Note authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term “Notes” shall 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 confidential offering memorandum dated November 23,
2010 pursuant to which the Notes issued on the Issue Date were offered to investors.




          “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 Company.




          “Officer’s Certificate” means a certificate signed on behalf of the Company by an
Officer of the Company, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Company, that meets the
requirements set forth in the 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 Company 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 Company or any of its Restricted Subsidiaries and another Person; provided,
however, that any cash or Cash Equivalents received must be applied in accordance with
Section 4.10 hereof.




          “Permitted Assign” means, with respect to any Person, (1) any spouse, descendant or
other immediate family member (which includes any child, stepchild, parent, stepparent, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law) of such
Person, (2) any estate, trust, corporation, partnership or other entity, the beneficiaries and
stockholders, partners or owners of which consist solely of R. Marcelo Claure and one or more
Person referred to in clause (1) and/or such other Persons referred to in the immediately preceding
clause (1), or (3) any executor, administrator, trustee, manager, director
or other similar fiduciary of any Person referred to in the immediately preceding clause (2),
acting solely in such capacity.




21









 








          “Permitted Holders” means each of the Investors and members of management of the
Company who are holders of Equity Interests of the Company 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, however, 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 Company.




          “Permitted Investments” means:





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




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




     (3) any Investment by the Company or any Restricted Subsidiary in a Person that is
engaged in a 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 Company or a Restricted Subsidiary,


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





     (4) any Investment in securities or other assets 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 or pursuant to any contract in effect on
the Issue Date;




     (6) any Investment acquired by the Company or any Restricted Subsidiary:




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




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



22









 






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




     (8) Investments the payment for which consists of Qualified Equity Interests of the
Company; provided, however, that such Equity Interests will not increase the
amount available for Restricted Payments under clause (3) of Section 4.07(a) hereof;




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




     (10) additional Investments having an aggregate fair market value, taken together with
all other Investments made pursuant to this clause (10) that are at that time outstanding,
not to exceed the greater of $150.0 million and 7.5% 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); in each case, after giving effect
to all subsequent reductions in the amount of any Investment made pursuant to this clause
(10) as a result of the repayment or disposition thereof for cash, not to exceed the amount
of the Investment previously made pursuant to this clause (10);




     (11) Investments in Brightstar Europe; provided, however, that to the
extent that and for so long as Investments having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (11) that are at that time
outstanding (after giving effect to all reductions in the amount of any Investment made
pursuant to this clause (11) as a result of the repayment or disposition thereof for cash),
exceed $200.0 million (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value), then the amount of such
excess shall be treated as a Restricted Payment for purposes of calculating the amount of
Restricted Payments made pursuant to the first paragraph of the covenant described under
Section 4.07(a);




     (12) advances to, or guarantees of Indebtedness of, employees not in excess of $5.0
million outstanding at any one time, in the aggregate; and




     (13) 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 Company.



          “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;



23









 






     (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;




     (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 (1), (4) or
(12) of Section 4.09(b) hereof; provided, however, that the Lien incurred
pursuant to clause (4) of Section 4.09(b) may not extend to any other property owned by such
Person or any of its Restricted Subsidiaries at the time the Lien is Incurred (other than
assets and property affixed or appurtenant thereto), and the Indebtedness (other than any
interest thereon) secured by the Lien may not be Incurred more than 270 days after the later
of the acquisition, completion of construction, repair, improvement, addition or
commencement of full operation of the property subject to the Lien;




     (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 Company or any Restricted Subsidiary;




     (9) Liens on property at the time the Company or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with or into the
Company or any Restricted Subsidiary; 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 Company or any Restricted Subsidiary;



24









 






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




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




     (12) Liens on specific items of inventory or other goods and proceeds thereof 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 Company or any Restricted Subsidiary and do not secure any Indebtedness;




     (14) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company or any Restricted Subsidiary in the ordinary
course of business;




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




     (16) Liens to secure any Refinancing, extension, renewal or replacement (or successive
Refinancing, 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) or (9);
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 set forth under clauses (6), (7), (8) or (9) at the time the
original Lien became a Permitted Lien under the Indenture, and (ii) an amount necessary to
pay any fees and expenses, including premiums, related to such Refinancing, extension,
renewal or replacement;




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




     (18) other Liens securing obligations incurred in the ordinary course of business,
which obligations do not exceed $10.0 million at any one time outstanding;




     (19) Liens securing judgments for the payment of money not constituting an Event of
Default under clause (5) under Section 6.01(a) 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;



25









 






     (20) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary
course of business;




     (21) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code, or any successor or comparable 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;




     (22) Liens securing Obligations under the Motorola Documents;




     (23) 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;




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




     (25) during a Suspension Period only, Liens securing Indebtedness in an amount that
does not exceed 10.0% of Consolidated Net Tangible Assets of the Company and its Restricted
Subsidiaries at any one time outstanding.



          For purposes of this definition, the term “Indebtedness” shall be deemed to include interest
on such Indebtedness. Additionally, solely for purposes of this definition and Section 4.12
hereof, any Indebtedness incurred during a Suspension Period shall be deemed to have been incurred
in compliance with Section 4.09 hereof.




          “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. The amount of any Preferred Stock
(including any Disqualified Stock) that has a fixed redemption, repayment or repurchase price shall
be calculated in accordance with the terms of such Preferred Stock as if such Preferred Stock were
redeemed, repaid or repurchased on any date on which the amount of such Preferred Stock is to be
determined pursuant to the Indenture; provided, however, that if such Preferred
Stock could not be required to be redeemed, repaid or repurchased at the time of such
determination, the redemption, repayment or repurchase price shall be calculated as of the first
date thereafter on which such Preferred Stock could be required to be so redeemed, repaid or
repurchased. If any Preferred Stock does not have a fixed redemption, repayment or repurchase
price, the amount of such Preferred Stock shall be its maximum liquidation value.




26









 








          “Pro Forma Cost Savings” means, with respect to any period, the cost savings that (i)
were directly attributable to an acquisition that occurred during the four quarter period or after
the end of the four quarter period and on or prior to the calculation date and calculated on a
basis that is consistent with Regulation S-X under the Securities Act as then in effect, (ii) were
actually implemented by the business that was the subject of any such acquisition within twelve
months after the date of the acquisition and prior to the calculation date or (iii) relate to the
business that is the subject of any such acquisition and that the chief financial officer of the
Company in good faith determines will likely be achieved based upon actions to be taken within
twelve months of the date of the acquisition and, in the case of each of (i), (ii) and (iii), are
described, as provided below in an Officers’ Certificate, as if all such reductions in costs had
been effected as of the beginning of such period. Pro Forma Cost Savings described above shall be
accompanied by an Officer’s Certificate delivered to the Trustee that outlines the specific actions
taken or to be taken, the cost savings achieved or to be achieved from each such action and that,
in the case of clause (iii) above, such savings are likely to be achieved.




          “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 Equity Interests” of a Person means Equity Interests of such Person other
than any Disqualified Stock; provided, however, except for purposes of the
definition of Excluded Contribution, Qualified Equity Interests shall not include any Equity
Interests to the extent the Company has designated the net proceeds, marketable securities or
Qualified Proceeds received from the sale of such Equity Interests as Excluded Contributions.
Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of the
Company.




          “Qualified Joint Venture” means a Person (i) at least 50% of the Voting Stock of which
is beneficially owned by the Company or a Restricted Subsidiary and (ii) which engages in only a
Similar Business.




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




          “Quotation Agent” means the Reference Treasury Dealer selected by the Company.




          “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 Company which shall be substituted for Moody’s or S&P
or both, as the case may be.




27









 








          “Record Date” for the interest or Additional Interest, if any, payable on any
applicable Interest Payment Date means May 15 or November 15 (whether or not a Business Day) next
preceding such Interest Payment Date.




          “Refinance” means, in respect of any Indebtedness, to refinance, extend, renew,
refund, repay, prepay, purchase, redeem, defease or retire, or to issue other Indebtedness in
exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing” shall have
correlative meanings.




          “Reference Treasury Dealer” means Jefferies & Company, Inc., Goldman, Sachs & Co. and
J.P. Morgan Securities LLC and their successors and assigns; provided, however,
that if any of the foregoing cease to be a primary U.S. Government securities dealer or dealers in
New York City (a “Primary Treasury Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer.




          “Reference Treasury Dealer Quotations” means with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal
amount, quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day immediately preceding such redemption date.




          “Registration Rights Agreement” means the Registration Rights Agreement dated as of
the Issue Date, among the Company, the Guarantors and the Initial Purchasers, with respect to the
Notes, and any similar registration rights agreement governing Additional Notes, unless context
indicates otherwise.




          “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 hereto, bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or its nominee, 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 hereto, 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.




28









 








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




          “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
Company 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 Company 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 Company or such Restricted Subsidiary to a
third Person in contemplation of such leasing.




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




29









 








          “Secured Indebtedness” means any Indebtedness of the Company 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 Second Amended and Restated Revolving Credit,
Term Loan and Security Agreement dated as of August 24, 2007, as amended prior to the Issue Date,
among Brightstar Corp., Brightstar US, Inc., Brightstar Puerto Rico, Inc., Accellular, LLC, as
Borrowers, the guarantors party thereto, the financial institutions party thereto, PNC Bank,
National Association, as administrative agent and PNC Capital Markets LLC, as sole lead arranger,
including any guarantees, collateral documents, instruments and agreements executed in connection
therewith.




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




          “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company as defined in Article 1, Rule 1-02(w)(1) or (2) of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date and,
for purpose of determining whether an Event of Default has occurred, any group of Restricted
Subsidiaries that combined would be such a Significant Subsidiary.




          “Specified Subsidiaries” means Narbitec, LLC and BPrepaid, LLC, until such time as
either such subsidiary’s assets total 2.0% of Total Assets or either such subsidiary becomes a
wholly owned subsidiary, at which time the Company shall cause such subsidiary to become a
Guarantor under the Indenture.




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




          “Stated Maturity” means, except as otherwise provided, with respect to any
Indebtedness, the dates specified in such Indebtedness as the fixed dates on which the principal or
interest of such Indebtedness are due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase or repayment of such
Indebtedness at the option of the holder thereof or the lender thereunder upon the happening of any
contingency unless such contingency has occurred).




          “Subordinated Indebtedness” means:





     (1) any Indebtedness of the Company 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.



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          “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




     (a) 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




     (b) 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 Company and the Restricted Subsidiaries
on a consolidated basis, as shown on the most recent balance sheet of the Company prepared in
accordance with GAAP.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended (15 U.S.C §§
77aaa-777bbbb).




          “Trustee” means Deutsche Bank Trust Company Americas, 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 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 Company which at the time of determination is an Unrestricted
Subsidiary (as designated by the Company, as provided below); and




     (2) any Subsidiary of an Unrestricted Subsidiary.



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




     (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 Company or any Restricted
Subsidiary.




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





     (1) the Company could 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




     (2) the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries
would be greater than such ratio for the Company 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 Company shall be notified by the Company to the Trustee by
promptly filing with the Trustee a copy of the resolution of the board of directors of the Company
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.




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          “VZ/BZ Aladi Arrangement” shall mean a financing arrangement under the Aladi Treaty
between Brazil, Venezuela and Mexico, pursuant to which an Affiliate of Brightstar obtains advances
from certain Brazilian banks for shipments from Motorola, Inc. to customers of such affiliate
located in Venezuela, with such advances being secured by letters of credit or a Motorola Guaranty,
as amended, modified, restated, renewed, refinanced or replaced from time to time.




          “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	(b)
	“Affiliate Transaction”

	 	 	4.11	(a)
	“Asset Sale Offer”

	 	 	4.10	(c)
	“Authentication Order”

	 	 	2.02	 
	“Change of Control Offer”

	 	 	4.14	(a)
	“Change of Control Payment”

	 	 	4.14	(a)
	“Change of Control Payment Date”

	 	 	4.14	(a)
	“Covenant Defeasance”

	 	 	8.03	 
	“Covenant Suspension Event”

	 	 	4.16	(a)
	“DTC”

	 	 	2.03	 
	“Event of Default”

	 	 	6.01	(a)
	“Excess Proceeds”

	 	 	4.10	(c)
	“incur”

	 	 	4.09	(a)
	“Legal Defeasance”

	 	 	8.02	 
	“Note Register”

	 	 	2.03	 
	“Offer Amount”

	 	 	3.09	(b)
	“Offer Period”

	 	 	3.09	(b)
	“Pari Passu Indebtedness”

	 	 	4.10	(c)
	“Paying Agent”

	 	 	2.03	 
	“Purchase Date”

	 	 	3.09	(b)






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	 	 	Defined in
	Term	 	Section
	“Redemption Date”

	 	 	3.07	(a)
	“Refinancing Indebtedness”

	 	 	4.09	(b)
	“Refunding Capital Stock”

	 	 	4.07	(b)
	“Registrar”

	 	 	2.03	 
	“Restricted Payment”

	 	 	4.07	(a)
	“Second Commitment”

	 	 	4.10	(b)
	“Successor Company”

	 	 	5.01	(a)
	“Successor Person”

	 	 	5.01	(c)
	“Suspended Covenants”

	 	 	4.16	(a)
	“Suspension Date”

	 	 	4.16	(a)
	“Treasury Capital Stock”

	 	 	4.07	(b)






          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 Company 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;




     (c) “or” is not exclusive;




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



34









 






     (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) “including” means “including without limitation”;




     (i) 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;




     (j) 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; and




     (k) all references in this Indenture or the Notes to “interest” or other amounts owing
on or with respect to the Notes shall be deemed to include any Additional Interest.



          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
Company. 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 Company, 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 Company in reliance thereon,
whether or not notation of such action is made upon such Note.




35









 








          (e) The Company 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 Company 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 Company 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 II




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
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.




36









 








          (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). Each 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 each
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.




          (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
Company 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 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 Company.



          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.




37









 








          The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, 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.




          Additional Notes ranking pari passu with the Initial Notes may be created and issued from time
to time by the Company 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, however, that the
Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with
Section 4.09 hereof. Any Additional Notes shall be issued with the benefit of an indenture
supplemental to this Indenture.




          (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 of the Company
shall execute the Notes on behalf of the Company by manual or facsimile signature.




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




          A Note shall not be 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 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 a Company’s 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 for an aggregate principal amount specified in such Authentication Order for
such Additional Notes issued hereunder.




          The Trustee may appoint an authenticating agent acceptable to the Company 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 Company.




          SECTION 2.03. Registrar and Paying Agent. (a) The Company 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”), which
shall record



38









 






the transfer and exchange of the Notes. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term “Registrar” includes any co-registrar and the term
“Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or
Registrar without prior notice to any Holder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Company fails to appoint
or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.




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




          (c) The Company 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.




          SECTION 2.04. Paying Agent To Hold Money in Trust. The Company 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 and premium, if any, or interest on the Notes, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company 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 Company or a Subsidiary) shall have no further
liability for the money. If the Company 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 Company, 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 Company 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 Company 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 Company 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 Company within 120 days or (ii) there shall have occurred and be continuing an
Event of 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



39









 






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, 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.




          (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 set forth 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, however, that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial interests in the
Regulation S



40









 







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 Company 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 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.




     (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 Company);




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




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




     (D) the Registrar receives the following:



41









 






     (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 Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.




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




          (c) Transfer 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 clause (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;



42









 






     (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 Company or any of
its 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 Company 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.




     (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 clause (i) or (ii) of Section 2.06(a)
hereof and if:



43









 






     (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 Company;




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




     (C) such transfer is effected by a Broker Dealer pursuant to the Exchange
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 subparagraph (D) above, 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 clause (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 Company 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.



44









 





          (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 Company or
any of its 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:



45









 






     (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 Company;




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




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




     (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 subparagraph (D) above, 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 Company shall issue and, upon receipt of an


46









 







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;




     (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 Company;




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



47









 






     (C) any such transfer is effected by a Broker Dealer pursuant to the Exchange
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 subparagraph (D) above, 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.



          (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 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 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 Company, 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 Company, 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 Company 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.




48









 








          (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 (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “U.S. SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:




(1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) (A “QIB”), OR (B) IT IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT;




(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE U.S. SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND




(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE MEANINGS GIVEN
TO THEM BY RULE 902 OF REGULATION S UNDER THE U.S. SECURITIES ACT. THE INDENTURE GOVERNING
THIS SECURITY CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING.”



49









 






     (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) or
(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 representing the Notes 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 COMPANY. 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 COMPANY OR THEIR 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:



50









 






“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).”



          (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 Company 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 Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07,
2.10, 3.06, 3.10, 4.10, 4.14 and 9.05 hereof).




     (iii) Neither the Registrar nor the Company 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 Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.




     (v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any 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



51









 







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 Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company 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 Company designated pursuant to Section 4.02 hereof, the Company 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.




     (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 Company shall execute, and the Trustee
shall authenticate and mail, the replacement Global Notes and Definitive Notes that 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 Company and the Trustee receives evidence to their satisfaction of
the ownership and destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s
requirements are met. Such holder requesting a replacement Note shall provide the Trustee and the
Company with an indemnity bond sufficient in the judgment of the Trustee and the Company to protect
the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note, which
cost may include any expenses of the Trustee.




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




          SECTION 2.08. 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 set forth in this Section 2.08 as not outstanding.




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Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note.




          If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser
(as defined in Section 8-303 of the Uniform Commercial Code).




          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 Company, a Subsidiary or an Affiliate of any thereof)
holds, on a Redemption Date or at Stated Maturity, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.




          SECTION 2.09. 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
Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in conclusively relying
on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee
actually 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 Company or any obligor upon the Notes or any Affiliate of the Company
or of such other obligor.




          SECTION 2.10. Temporary Notes. Until certificates representing Notes are ready for
delivery, the Company 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 Company considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company 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 Company 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
dispose of cancelled Notes (subject to the record retention requirement of the Exchange Act) in
accordance with Trustee’s customary practices. Certification of the disposition of all cancelled
Notes shall be delivered to the Company at the Company’s written request and
expense. The Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.





53









 








          SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of interest
on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company 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 Company 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; provided,
however, 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 Company of such
special record date. At least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed, first-class postage prepaid, 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.




          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 which were carried by such
other Note.




          SECTION 2.13. CUSIP Numbers; ISIN Numbers. The Company in issuing the Notes may use
CUSIP numbers (if then generally in use) or ISIN numbers (if then generally in use) and, if so, the
Trustee shall use CUSIP numbers or ISIN numbers in notices of redemption as a convenience to
Holders; provided, however, 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 Company will as promptly as practicable notify the Trustee of any change in the
CUSIP numbers or ISIN numbers.




ARTICLE III




Redemption




          SECTION 3.01. Notices to Trustee. If the Company elects to redeem Notes pursuant to
Section 3.07 hereof, it shall furnish to the Trustee, at least five Business Days (or some later
date agreeable to the Trustee) before notice of redemption is required to be mailed or caused to be
mailed 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 the 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.




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          SECTION 3.02. Selection of Notes To Be Redeemed or Purchased. If less than all of
the Notes 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 or (b) on a pro rata basis or, to the extent that selection on a pro
rata basis is not practicable, by lot or by such other method the Trustee considers fair and
appropriate. 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 Company 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
minimum 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 a minimum of
$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.




          SECTION 3.03. Notice of Redemption. Subject to Section 3.09 hereof, the Company
shall mail or cause to be mailed by first-class mail, postage prepaid, 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 VIII or Article XI hereof. Except as set forth in
Section 3.07(c) hereof, notices of redemption may not be conditional.




          The notice shall identify the Notes (including by CUSIP and ISIN numbers) 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;




55









 








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




          (f) that, unless the Company 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, or ISIN 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(c) hereof, any
condition to such redemption.




          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered
to the Trustee, at least two 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 applicable redemption price. 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.




          SECTION 3.05. Deposit of Redemption or Purchase Price. Prior to 10:00 a.m. (New York
City time) on the anticipated redemption or purchase date, the Company 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 on all Notes to be redeemed or purchased on that date. Upon payment of
any amount in connection with a redemption, the Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes
to be redeemed or purchased.




          If the Company 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



56









 






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 Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption or purchase date until such principal is paid, and to the
extent lawful on any 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 Company shall issue, and the Trustee shall authenticate for the
Holder at the expense of the Company, 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, however, that each new Note will be in a minimum
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 December 1, 2014, the
Company 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 to each Holder’s registered address or otherwise delivered in
accordance with the procedures of DTC, 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, to the
date of redemption (the “Redemption Date”), subject to the right of Holders on the relevant
Record Date to receive interest due on the relevant Interest Payment Date.




          (b) At any time prior to December 1, 2014, the Company may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of the Notes (which includes
Additional Notes, if any) at a redemption price equal to 109.500% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon to the applicable Redemption Date, subject to the
right of Holders of record of the Notes 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, however, that





          (1) at least 65% of such aggregate principal amount of Notes (which includes
Additional Notes, if any) remains outstanding immediately after the occurrence of
each such redemption (other than Notes held, directly or indirectly, by the Company
or Subsidiaries of the Company); and




          (2) such redemption occurs within 90 days after the date of the related Equity
Offering.



          (c) On and after December 1, 2014, the Company may redeem the Notes, in whole or in part,
upon notice as set forth in Section 3.03 hereof, at the redemption prices (expressed as percentages
of principal amount of the Notes on the Redemption Date) set forth below, plus accrued and unpaid
interest thereon to the applicable Redemption Date, subject to the right of Holders of record of
Notes on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, if redeemed during the twelve-month period beginning on
December 1 of each of the years indicated below:




57









 








	 	 	 	 	 
	Year	 	Percentage	 
	2014
	 	 	104.750	%
	2015 and thereafter
	 	 	100.000	%






          (d) 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 Company 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 Company or any Restricted
Subsidiary 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 Company or such Restricted Subsidiary, as the case may
be, 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.




          (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 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 Company or such Restricted Subsidiary,
as the case may be, shall send, by first-class mail, 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;



58









 






     (iv) that, unless the Company 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 $1,000 only (so long as any Note
remaining outstanding has a minimum denomination of $2,000);




     (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
Company, the Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;




     (vii) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, 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 Notes and such Pari Passu
Indebtedness will 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 of $1,000 in excess thereof, shall be purchased and any Note remaining
outstanding has a minimum denomination of $2,000); 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 Company 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.




          (f) The Company, the Depositary or the Paying Agent, as the case may be, shall promptly mail
or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly
tendered by such Holder and accepted by the Company for purchase, and the Company 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



59









 






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, however, that each such new Note shall be in a principal amount of $2,000
and integral multiples of $1,000 in excess thereof. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce 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 IV




Covenants




          SECTION 4.01. Payment of Notes. The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in
the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if
the Paying Agent, if other than the Company or a Subsidiary, holds as of noon Eastern Time on the
due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.




          The Company shall pay all Additional Interest, if any, in the same manner on the dates and in
the amounts set forth in the Registration Rights Agreement. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal
at the rate equal to the then applicable interest rate on the 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 (without regard to any applicable grace period) at the same rate
to the extent lawful.




          SECTION 4.02. Maintenance of Office or Agency. The Company 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 Company
in respect of the Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.




          The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or



60









 






agency in the Borough of Manhattan in the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.




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




          SECTION 4.03. Reports and Other Information. So long as the Notes are outstanding,
the Company shall furnish to the Trustee and the Holders, and post on a password-protected website:





     (1) within 120 days after the end of each fiscal year ending after the Issue Date, an
annual report of the Company containing substantially the same information required to be
contained in an Annual Report on Form 10-K under the Exchange Act, including (A)
“Management’s discussion and analysis of financial condition and results of operations”, (B)
audited financial statements prepared in accordance with GAAP and (C) a qualitative
presentation of non-Guarantor financial information consistent with the presentation thereof
in this offering memorandum and derived from such financial statements;




     (2) within 60 days after the end of each of the first three fiscal quarters of each
fiscal year, reports of the Company containing substantially the same information required
to be contained in a Quarterly Report on Form 10-Q under the Exchange Act, including (A)
“Management’s discussion and analysis of financial condition and results of operations”, (B)
unaudited quarterly financial statements prepared in accordance with GAAP and (C) a
qualitative presentation of non-Guarantor financial information consistent with the
presentation thereof in this offering memorandum and derived from such financial statements;
and




     (3) within 10 Business Days of the occurrence of an event required to be therein
reported, such other reports containing substantially the same information required to be
contained in a Current Report on Form 8-K under the Exchange Act under Items 1.01 and 1.02
(in each case to the extent related to acquisitions, dispositions or financings), 2.01,
2.03, 2.04, 3.03 (to the extent related to modifications of the terms of the Notes), 4.02,
5.01, 7.01, 8.01 and 9.01 of such Form 8-K or any successor form;


provided, however, that (a) such reports shall not be required to contain separate
financial statements for Guarantors or Non-Guarantor Restricted Subsidiaries that would be required
under Section 3-10 or Section 3-16 of Regulation S-X, respectively, promulgated by the SEC, and (b)
such reports shall not be required to include any information required by Item 9A of Form 10-K,
Items 307 or 308 of Regulation S-K (or, in each case, any successor item or provision in respect
thereof) or any other rule or regulation implementing Section 404 of the Sarbanes-Oxley Act of
2002), or by Item 402 of Regulation S-K. The Company shall not be required to furnish to the
Trustee or Holders (or otherwise make available to Holders upon request), any documents that would
otherwise be filed as exhibits to an Annual Report or Form 10-K, Quarterly Report or Form 10-Q or
Current Report or Form 8-K.




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          Notwithstanding the foregoing, the Company may fulfill the requirement to distribute the
foregoing reports and information by filing or furnishing the information with the SEC in a manner
that results in such reports and information being posted on the SEC’s public website;
provided, however, that the Trustee shall have no obligation whatsoever to
determine if such reports and information have been so provided to the SEC. Delivery of such
reports, information and documents to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely on Officers’
Certificates).




          SECTION 4.04. Compliance Certificate. (a) The Company and each Guarantor (to the
extent that such Guarantor is so required under the Trust Indenture Act) shall deliver to the
Trustee, within 120 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 (or such other Officer as is appropriate) stating that a review of the
activities of the Company 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 Company
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
Company 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 Company 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 Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed Default, the Company shall promptly
(which shall be no more than five (5) Business Days) deliver to the Trustee by registered or
certified mail or by facsimile transmission an Officer’s Certificate specifying such event and what
action the Company proposes to take with respect thereto.




          SECTION 4.05. Taxes. The Company 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 Company 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 Company 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.




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          SECTION 4.07. Limitation on Restricted Payments. (a) The Company 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
Company’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation, other than:




     (A) dividends or distributions by the Company payable solely in Qualified
Equity Interests of the Company; 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 Equity Interests issued by a Restricted Subsidiary other than a Wholly Owned
Subsidiary, the Company 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 Equity Interests;




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




     (III) purchase, redeem, defease or otherwise acquire or retire for value, in each case
prior to any scheduled repayment, sinking fund payment or Stated Maturity, any Subordinated
Indebtedness, other than:




     (A) with respect to Indebtedness permitted to be incurred pursuant to clauses
(7) and (8) of Section 4.09(b) hereof; or




     (B) the purchase, redemption, defeasance or other acquisition or retirement of
Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation or
principal installment at Stated Maturity, in each case due within one year of the
date of purchase, redemption, defeasance or acquisition or retirement; or




     (IV) make any Restricted Investment,




(each such payment or other action set forth in clauses (I) through (IV) above being
referred to as a “Restricted Payment”), unless, at the time of and immediately after
giving effect to such Restricted Payment:




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




     (2) the Company would have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to Section 4.09(a) hereof; and



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     (3) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries
after the Issue Date (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)(b) and (9) of Section 4.07(b) hereof and Restricted
Payment deemed to be made pursuant to the proviso to clause (11) of the definition
of “Permitted Investments”, 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 Company for the period
(taken as one accounting period) beginning October 1, 2010, to the end of
the Company’s most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment,
or, if such Consolidated Net Income for such period is a deficit, minus 100%
of such deficit; plus




     (b) 100% of the aggregate net cash proceeds and the fair market value,
as determined in good faith by the Company, of marketable securities or
other property received by the Company after the Issue Date from the issue
or sale of:




     (i) Qualified Equity Interests, but excluding such proceeds and
such fair market value, as determined in good faith by the Company,
of marketable securities or other property received from the sale of
Qualified Equity Interests to the extent such amounts have been
applied to make Restricted Payments in accordance with clause (4) of
Section 4.07(b) hereof; or




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




     provided, however, that the calculation set forth in
this clause (b) shall not include the net cash proceeds or fair market value
of marketable securities or other property (X) received from the sale of
Refunding Capital Stock or (Y) constituting Excluded Contributions; plus




     (c) 100% of the aggregate amount of net cash proceeds and the fair
market value, as determined in good faith by the Company, of marketable
securities or other property contributed to the capital of the Company after
the Issue Date (other than net cash proceeds (A) contributed by a Restricted
Subsidiary and (B) constituting an Excluded Contribution); plus




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



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     (i) the sale or other disposition (other than to the Company or
a Restricted Subsidiary) of any Restricted Investment (other than an
Investment in an Unrestricted Subsidiary) made after the Issue Date
by the Company or its Restricted Subsidiaries and the repayment,
repurchase or redemption of any such Restricted Investment (including
any release of any guarantee, which constitutes such a Restricted
Investment); or




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




     (e) in the case of the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary after the Issue Date, the fair market value of the
Investment in such Unrestricted Subsidiary, as determined by the Company in
good faith, at the time of such redesignation (other than an Unrestricted
Subsidiary to the extent the Investment in such Unrestricted Subsidiary was
made by the Company 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 redemption of any Capital Stock or
Subordinated Indebtedness within 60 days after the date of declaration thereof or
call for redemption if, at such date of declaration or call for redemption, such
payment or redemption was permitted by the provisions of the preceding paragraph as
of the date of declaration and the payment itself shall be deemed to have been paid
on such date of declaration and shall not also be deemed a Restricted Payment under
Section 4.07(a) hereof); provided, however, that any Restricted
Payment made in reliance on this clause (1) shall reduce the amount available for
Restricted Payments pursuant to clause (3) of Section 4.07(a) hereof only once;




     (2) (a) the purchase, redemption, defeasance or other acquisition or retirement
for value of any Equity Interests (“Treasury Capital Stock”) or the payment
of dividends upon such Equity Interests, or the purchase, redemption, defeasance or
other acquisition or retirement for value of any Subordinated Indebtedness
(including any accrued dividends or interest), in exchange for, or out of the
proceeds (other than Excluded Contributions) of the substantially concurrent sale
of, Qualified Equity Interests of the Company (“Refunding Capital Stock”)
and (b) if immediately prior to the retirement of Treasury Capital



65









 







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 in an aggregate amount in any calendar 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 purchase, redemption, defeasance or other acquisition or retirement for
value of Subordinated Indebtedness of the Company or a Guarantor made by exchange
for, or out of the proceeds of the substantially concurrent sale of, Refinancing
Indebtedness of the Company or a Guarantor, as the case may be, that is incurred in
compliance with Section 4.09 hereof;




     (4) the purchase, redemption, defeasance or other acquisition or retirement for
value of Equity Interests of the Company held by any future, present or former
employee, director or consultant of the Company or any of its Subsidiaries 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) shall not exceed in any
calendar year $5.0 million (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 $10.0 million in any calendar year); provided further,
however, that such amount in any calendar year may be increased by an amount
not to exceed:




     (i) the net cash proceeds from the sale of any Qualified Equity
Interests of the Company to members of management, directors or consultants
of the Company or any of its Subsidiaries that occurs after the Issue Date,
to the extent such net cash proceeds have not otherwise been applied to make
Restricted Payments pursuant to clause (3) of Section 4.07(a) hereof; plus




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




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




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



66









 






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




     (6) the declaration and payment of dividends:




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




     (b) to holders of Refunding Capital Stock that is Preferred
Stock and that was exchanged for, or the proceeds of which were used
to purchase, redeem, defease or otherwise acquire or retire for
value, any Preferred Stock (other than Preferred Stock of the Company
outstanding on the Issue Date) 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 clauses (a)
and (b) 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 declaration of any such
dividends, after giving effect to such declaration on a pro forma
basis, the Company 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 the greater of $25.0 million and 1.25%
of Total Assets at the time of such Investment (with the fair market value of each
Investment being determined in good faith by the Company 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 Company’s common stock,
following the consummation of an underwritten public offering of the Company’s
common stock after the Issue Date, of up to 5% per annum of the net cash proceeds
received by or contributed to the Company in or from any such public offering, other
than public offerings with respect to common stock registered on Form S-8 and other
than any public sale constituting an Excluded Contribution;




     (10) Restricted Payments that are made with Excluded Contributions;



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     (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 $25.0 million and 1.25% of Total Assets at the time made;
provided, however, that at the time of, and after giving effect to,
any Restricted Payment permitted under this clause (11), no Default shall have
occurred and be continuing or would occur as a consequence thereof;




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




     (13) the distribution, by dividend or otherwise, by the Company or a Restricted
Subsidiary, of shares of Capital Stock of, or Indebtedness owed to the Company or a
Restricted Subsidiary by Unrestricted Subsidiaries.



          (c) The Company will 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 Company and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated will be deemed to be Restricted Payments in an amount determined as set forth in the
last sentence of the definition of “Investment”. Such designation will 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) or (11) 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.




          SECTION 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries that is not a Guarantor 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 Company 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 Company or any of its Restricted
Subsidiaries;




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




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



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          (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 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 Company 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 Company 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;




     (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 Restricted
Subsidiaries that are not Guarantors pursuant to an agreement governing the Indebtedness,
Disqualified Stock or Preferred Stock incurred by such Restricted Subsidiary and permitted
to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09
hereof, (i) if the encumbrances and restrictions contained in any such agreement or
instrument taken as a whole are not materially more restrictive to the applicable Restricted
Subsidiary than the encumbrances and restrictions contained in the agreements described in
clause (a) above (as determined in good faith by the Company), or (ii) if such encumbrance
or restriction is not materially more restrictive to the applicable Restricted Subsidiary
than is customary in comparable financings (as determined in good faith by the Company) and
either (x) the Company determines in good faith that such encumbrance or restriction will
not materially affect the Company’s ability to make the principal or interest payments on
the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect
of a payment or financial covenant relating to such Indebtedness;



69









 






     (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; and




     (12) any encumbrances or restrictions of the type referred to in 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,
however, that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith judgment of the
Company, 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.



          SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock
and Preferred Stock. (a) The Company 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 Company 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 Company 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
Company and its Restricted Subsidiaries for the 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 2.50 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, provided, however, that
Restricted Subsidiaries that are not Guarantors may not incur Indebtedness or issue Disqualified
Stock or Preferred Stock if, after giving pro forma effect to such incurrence or issuance
(including a pro forma application of the net proceeds therefrom), more than an aggregate of $100.0
million of Indebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries that
are not Guarantors is outstanding pursuant to this Section 4.09(a) at such time.




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





     (1) the incurrence of Indebtedness under Credit Facilities by the Company, any of the
Subsidiary Guarantors or the Specified Subsidiaries, if any, 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



70









 







thereof); provided, however, that, after giving effect to any such
incurrence, the aggregate principal amount of all Indebtedness incurred under this clause
(1) and then outstanding (including all Indebtedness Incurred pursuant to clause (13) below
to refinance any Indebtedness incurred pursuant to this clause (1)) does not exceed the
greater of (i) $600.0 million less the sum of all principal payments with respect to such
Indebtedness pursuant to clause (1) of Section 4.10(b) and (ii) the sum of (x) 70% of the
book value of the inventory of the Company and the Subsidiary Guarantors and (y) 85% of the
book value of the accounts receivable (exclusive of accounts receivable owed by the Company
or any of its Restricted Subsidiaries) of the Company and the Subsidiary Guarantors (in each
case measured at the time of incurrence);




     (2) the incurrence by the Company of Indebtedness represented by the Notes (other than
any Additional Notes), any notes issued in exchange for such Notes pursuant to the
Registration Rights Agreement and any Guarantees of any such Notes or notes;




     (3) Indebtedness of the Company and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness set forth in clauses (1) and (2) of this Section
4.09(b));




     (4) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and
Preferred Stock incurred by the Company or any of its Restricted Subsidiaries, to finance
the purchase, lease or improvement of property (real or personal) or equipment 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, in an aggregate principal amount at the date
of such incurrence (including all Indebtedness Incurred pursuant to clause (13) below to
refinance any Indebtedness incurred pursuant to this clause (4)) not to exceed the greater
of $50.0 million and 2.5% of Total Assets; provided, however, that such
Indebtedness exists at the date of such purchase or transaction or is created within 270
days thereafter;




     (5) Indebtedness incurred by the Company 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 letter 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 Company 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 the
Capital Stock of a Subsidiary, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or Capital Stock; provided,
however, that the maximum assumable liability in respect of all such Indebtedness
shall at no time exceed the gross proceeds, including non-cash proceeds (the fair market
value of such non-cash proceeds being measured at the time
received and without giving effect to any subsequent changes in value), actually
received by the Company and its Restricted Subsidiaries in connection with such disposition;



71









 






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




     (8) Indebtedness of a Restricted Subsidiary to the Company or another Restricted
Subsidiary; provided, however, that any subsequent issuance or transfer of
any Capital Stock or any other event which results in such other Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Company or another Restricted Subsidiary) shall be deemed, in
each case, to be an incurrence of such indebtedness; provided further,
however, if a Guarantor incurs such Indebtedness 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;




     (9) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or
another Restricted Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock or any other event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer
of any such shares of Preferred Stock (except to the Company or another Restricted
Subsidiary) shall be deemed in each case to be an issuance of such shares of Preferred
Stock;




     (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
performance and completion guarantees provided by the Company or any Restricted Subsidiary
in the ordinary course of business;




     (12) (a) Contribution Debt or (b) Indebtedness or Disqualified Stock of the Company and
Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary not
otherwise permitted hereunder in an aggregate principal amount or liquidation preference,
which when aggregated with the principal amount and liquidation preference of all other
Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant
to this clause (12)(b) (including all Indebtedness Incurred pursuant to clause (13) of this
Section 4.09(b) to Refinance any Indebtedness incurred pursuant to this clause (12)(b)) of
this Section 4.09(b), does not at any one time outstanding exceed the greater of (a) $75.0
million and (b) 3.75% of Total Assets;



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     (13) the incurrence by the Company or any Restricted Subsidiary of the Company of
Indebtedness, Disqualified Stock or Preferred Stock which serves to Refinance (herein
“Refinancing Indebtedness”) any Indebtedness, Disqualified Stock or Preferred Stock
incurred pursuant to Section 4.09(a) hereof, clauses (1), (2), (3), (4) or (12) above or
this clause (13) or clauses (18)(a) or (19) below; provided, however, that:




     (A) the principal amount of such Refinancing Indebtedness does not exceed the
principal amount of (or accreted value, if applicable), plus any accrued and unpaid
interest on, the Indebtedness being so Refinanced, plus the amount of any premium
(including any tender premium and any defeasance costs, fees and premium required to
be paid under the terms of the instrument governing such Indebtedness) and any fees
and expenses incurred in connection with the issuance of such Refinancing
Indebtedness;




     (B) such Refinancing Indebtedness shall have a Weighted Average Life to
Maturity at the time such Refinancing Indebtedness is incurred equal to or greater
than the remaining Weighted Average Life to Maturity of the Indebtedness,
Disqualified Stock or Preferred Stock being Refinanced;




     (C) if such Refinancing Indebtedness constitutes Subordinated Indebtedness,
such Refinancing Indebtedness shall have a final scheduled maturity date equal to or
later than the final scheduled maturity date of the Indebtedness being Refinanced;




     (D) to the extent such Refinancing Indebtedness Refinances (i) Subordinated
Indebtedness, such Refinancing Indebtedness shall be subordinated 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




     (E) Refinancing Indebtedness shall not include:




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




     (ii) Indebtedness, Disqualified Stock or Preferred Stock of the Company
or a Restricted Subsidiary that Refinances Indebtedness, Disqualified Stock
or Preferred Stock of an Unrestricted Subsidiary;




     (14) 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, however, that such Indebtedness is extinguished
within two Business Days of its incurrence;



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




     (16) (a) any guarantee by the Company 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 Company;
provided, however, that such guarantee is incurred in accordance
with Section 4.15 hereof; and




     (17) Indebtedness owed by the Company 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 Company to the extent set forth in clause (4) of Section 4.07(b) hereof.




     (18) Indebtedness of Foreign Subsidiaries (a) incurred to fund working capital needs up
to an aggregate principal amount which, when aggregated with the principal amount of all
other Indebtedness then outstanding and incurred pursuant to this clause (18)(a) (including
all Indebtedness incurred pursuant to clause (13) above to refinance any Indebtedness
incurred pursuant to this clause (18)(a)), does not exceed the sum of (x) 50% of the book
value of the inventory of all Foreign Subsidiaries on a consolidated basis and (y) 70% of
the book value of the accounts receivable (exclusive of accounts receivable owed by the
Company or any of its Restricted Subsidiaries) of all Foreign Subsidiaries on a consolidated
basis (in each case measured at the time of incurrence), or (b) incurred in connection with
Sale and Lease-Back Transactions in Venezuela with respect to property owned on the Issue
Date or with respect to property acquired to hedge against currency or political risk in
Venezuela or Indebtedness secured by such property and not extending to other property; and




     (19) Acquired Indebtedness; provided, however, that on a pro forma
basis after giving effect to the incurrence thereof and the related acquisition, (a) the
Company could incur at least $1.00 of additional Indebtedness pursuant to the provisions
Section 4.09(a) hereof or (b) the Fixed Charge Coverage Ratio is greater than immediately
prior to such transaction.




     (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 set forth in clauses (1) through (19) of
Section 4.09(b) hereof or is entitled to be incurred pursuant to Section 4.09(a) hereof, the
Company, in its sole discretion, shall classify, and may thereafter 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



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Indebtedness, Disqualified Stock or Preferred Stock in one of the above clauses;
provided, however, that all Indebtedness outstanding under the Senior Credit
Facilities on the Issue Date after the application of the net proceeds from the sale of the
Notes shall be deemed incurred pursuant to clause (1) of Section 4.09(b) hereof and may not
be reclassified; and




     (2) at the time of incurrence, the Company shall be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness set forth in Sections
4.09(a) and 4.09(b) hereof (it being understood that any Indebtedness, Disqualified Stock or
Preferred Stock incurred pursuant to clause (4) or clause (12) of Section 4.09(b) shall
cease to be deemed incurred or outstanding for purposes of clause (4) and clause (12),
respectively, and shall be deemed incurred for the purposes of Section 4.09(a) hereof from
and after the first date on which, and to the extent that, the Company or such Restricted
Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock
under Section 4.09(a) hereof without reliance on clause (4) or (12), as applicable).



          Accrual of interest, the accretion of accreted value and the payment of interest or dividends
in the form of additional Indebtedness, Disqualified Stock or Preferred Stock shall 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 Indebtedness; provided, however, 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.




          (d) The Company 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 Company 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 Company 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 Indebtedness (other than
Subordinated Indebtedness) is not deemed to be subordinated or junior to any other such
Indebtedness merely because it has a junior priority with respect to the same collateral.




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          SECTION 4.10. Limitation on Sales of Assets. (a) The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:





     (1) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Company) 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 Company or such Restricted Subsidiary, as the case may be, is in
the form of cash or Cash Equivalents; provided, however, that, for purposes
of this provision and for no other purpose, each of the following shall be deemed to be
cash:




     (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s
most recent balance sheet or in the footnotes thereto) of the Company or such
Restricted Subsidiary, other than liabilities that are by their terms subordinated
to the Notes, that are assumed by the transferee of such assets and with respect to
which the Company and all of its Restricted Subsidiaries have been validly released
by all creditors in writing,




     (B) any securities received by the Company or such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing of
such Asset Sale to the extent of the cash received in such conversion, and




     (C) any Designated Non-cash Consideration received by the Company or such
Restricted Subsidiary having an aggregate fair market value (as determined in good
faith by the Company), taken together with all other Designated Non-cash
Consideration received pursuant to this clause (C) that is at that time outstanding,
not to exceed the greater of $100.0 million and 5.0% 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.



          (b) Within 365 days after the receipt of any Net Proceeds of any Asset Sale, the Company or
any 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;



76









 






     (B) Obligations under Indebtedness (other than Subordinated 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 Indebtedness (other than Subordinated Indebtedness)
(and to correspondingly reduce commitments with respect thereto); provided,
however, that the Company shall equally and ratably reduce Obligations under
the Notes 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
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 Company or another Restricted Subsidiary; or




     (2) to:




     (A) make capital expenditures; or




     (B) make an Investment in any one or more businesses;
provided, however, that any such Investment is in the
form of the acquisition of Capital Stock and results in such business
becoming a Restricted Subsidiary; or




     (C) acquire properties or other assets,


that, in the case of clause (C), are either used or useful in a Similar Business or replace the
businesses, properties or assets that are the subject of such Asset Sale; provided
further, however, that a binding commitment shall be treated as a permitted
application of the Net Proceeds from the date of such commitment so long as the Company or such
other Restricted Subsidiary enters into such commitment with the good faith expectation that such
Net Proceeds will 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 Company
or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second
Commitment”) within 180 days of such cancellation or termination; provided,
however, 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 Asset Sales 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 $20.0 million, the Company
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 (or accreted value, as applicable) of the Notes and such Pari Passu Indebtedness that is


77









 







an integral multiple of $1,000 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 (or accreted value, as applicable)
thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture. The Company will commence an Asset Sale
Offer with respect to Excess Proceeds within ten Business Days after the date that Excess Proceeds
exceed $20.0 million by delivering 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 Company 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 Notes and such Pari Passu
Indebtedness will be purchased on a pro rata basis based on the principal amount (or accreted
value, as applicable) of the Notes and such Pari Passu Indebtedness tendered. Upon completion of
any such Asset Sale Offer, the amount of Excess Proceeds shall be reduced by the amount of such
Asset Sales Offer.




          (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 Company will comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent 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
the Indenture, the Company will comply with the applicable securities laws and regulations and
shall not be deemed to have breached their obligations described in the Indenture by virtue
thereof.




          SECTION 4.11. Transactions with Affiliates. (a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance
or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an
“Affiliate Transaction”) unless:





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




     (2) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate payments or consideration in excess of $10.0
million, the Company delivers to the Trustee a resolution adopted by the majority of
the disinterested members of the board of directors of the Company 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).



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





     (1) transactions between or among the Company 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 reasonable and customary fees paid to, and indemnities
provided on behalf of, officers, directors, employees or consultants of the Company
or any Restricted Subsidiary;




     (4) transactions in which the Company 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 Company or such Restricted
Subsidiary from a financial point of view or stating that the terms are not
materially less favorable to the Company or its relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;




     (5) any agreement as in effect as of the Issue Date, or any amendment thereto
(so long as any such amendment is not materially disadvantageous to the Company and
the Restricted Subsidiaries when taken as a whole as compared to the applicable
agreement as in effect on the Issue Date);




     (6) the existence of, or the performance by the Company or any Restricted
Subsidiary of its obligations under the terms of, any stockholders agreement
(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 Company 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
(6) to the extent that the terms of any such amendment or new agreement are not
otherwise disadvantageous to the Company and the Restricted Subsidiaries when taken
as a whole;




     (7) transactions with joint ventures, 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 the Indenture, which are fair
to the Company and its Restricted Subsidiaries, in the reasonable determination of
the board of directors of the Company or the senior management thereof, or are on
terms at least as favorable as are reasonably likely to have been obtained at such
time from an unaffiliated party;



79









 






     (8) the issuance of Qualified Equity Interests of Company to any Permitted
Holder or to any director, officer, employee or consultant;




     (9) payments by the Company or any Restricted Subsidiary to any of the
Investors for financial advisory, financing, underwriting or placement services or
in respect of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved in good faith by a
majority of the board of directors of the Company;




     (10) payments or loans (or cancellation of loans) to employees or consultants
of the Company or any Restricted Subsidiary and employment agreements, stock option
plans and other similar arrangements with such employees or consultants which, in
each case, are approved in good faith by the board of directors of the Company; and




     (11) investments by the Investors in securities of the Company or any
Restricted Subsidiary 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.



          SECTION 4.12. Liens. The Company 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 Company 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 an
aggregate principal amount of Senior Indebtedness which, at the time of incurrence
and after taking into account the application of proceeds therefrom, when taken
together with all other Secured Indebtedness of the Company and the Guarantors on a
consolidated basis then outstanding, does not exceed the greater of (x) the
aggregate principal amount of Indebtedness permitted to be Incurred pursuant to
clause (1) of Section 4.09 and (y) the maximum principal amount of Indebtedness that
would not cause the Consolidated Net Secured Debt Ratio of the Company to exceed
2.75:1.0, and (b) Liens securing other obligations under the documents governing
such Senior Indebtedness not constituting Indebtedness.



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          SECTION 4.13. Corporate Existence. Subject to Article V hereof, the Company 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 Company or any such Restricted Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other existence of any of
its Restricted Subsidiaries, if the Company in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company 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 Company has previously or concurrently mailed a redemption notice with
respect to all the outstanding Notes as set forth under Section 3.07 hereof, the Company shall make
an offer to purchase all of the Notes pursuant to the offer set forth 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 to the date of purchase,
subject to the right of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date. Within 30 days following any Change of Control, the Company
will send notice of such Change of Control Offer, with a copy to the Trustee, to each Holder of
Notes by first-class mail to the address of such Holder appearing in the security register 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 the
circumstances and relevant facts regarding such Change of Control;




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




     (3) that all Notes properly tendered pursuant to such Change of Control Offer will be
accepted for payment by us, that any Note not properly tendered will remain outstanding and
continue to accrue interest, and that unless the Company 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; and




     (4) the instructions, as determined by the Company, consistent with this Section 4.14,
that a Holder must follow in connection with the Change of Control Offer.



          The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent 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 Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached their obligations under this Section 4.14 by virtue
thereof.






81









 








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





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




     (ii) 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




     (iii) 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 Company.



          (c) The Company 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 Company 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 completion of the
transaction constituting 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 Company shall not permit any Restricted Subsidiary (other than Brightstar Puerto Rico, Inc.),
to guarantee the payment of any Indebtedness of the Company or any Subsidiary Guarantor under the
Senior Credit Facilities 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, 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;




     (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 Company 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



82









 






     (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 all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity.



          SECTION 4.16. Suspension of Covenants. (a) During any period of time that (i) the
Notes have Investment Grade Ratings from both Rating Agencies and (ii) no Default or Event of
Default has occurred and is continuing under this Indenture (the occurrence of the events set forth
in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension
Event”), the Company and the Restricted Subsidiaries shall not be subject to Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.15 and clause (4) of Section 5.01(a) hereof (collectively, the
“Suspended Covenants”). Upon the occurrence of a Covenant Suspension Event, the amount of
Excess Proceeds from Net Proceeds shall be reset at zero. The Guarantees of the Guarantors shall
be suspended as of such date (the “Suspension Date”).




          (b) In the event that the Company and the Restricted Subsidiaries are not subject to the
Suspended Covenants under this Indenture for any period of time as a result of the foregoing, and
on any subsequent date (the “Reversion Date”) one or both of the Rating Agencies withdraws
its Investment Grade Rating or downgrades the rating assigned to the Notes below an Investment
Grade Rating, then the Company and the Restricted Subsidiaries shall thereafter again be subject to
the Suspended Covenants under this Indenture with respect to future events and the Guarantees shall
be reinstated. The period of time between the Suspension Date and the Reversion Date is referred
to herein as the “Suspension Period”. Notwithstanding that the Suspended Covenants may be
reinstated, no Default or Event of Default shall be deemed to have occurred as a result of a
failure to comply with the Suspended Covenants during the Suspension Period (or upon termination of
the Suspension Period or after that time based solely on events that occurred during the Suspension
Period). The Company shall deliver promptly to the Trustee an Officer’s Certificate notifying it
of any such occurrence under this Section 4.16.




          On the Reversion Date, all Indebtedness incurred, or Preferred Stock issued, during the
Suspension Period will be classified to have been incurred or issued pursuant to Section
4.09(b)(3). Calculations made after the Reversion Date of the amount available to be made as
Restricted Payments under Section 4.07 hereof will be made as though Section 4.07 hereof had been
in effect since the Issue Date and prior to, but not during, the Suspension Period.




          SECTION 4.17. Limitation on Sale and Lease-Back Transactions. The Company shall not,
and shall not permit any Restricted Subsidiary to, enter into any Sale and Lease-Back Transaction
with respect to any property unless the Company or such Restricted Subsidiary would be entitled to:





     (A) Incur Indebtedness in an amount equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction pursuant to Section 4.09 and



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     (B) create a Lien on such property securing such Attributable Debt without
equally and ratably securing the Notes pursuant to Section 4.12.



          SECTION 4.18. Limitation on Line of Business. The Company shall not, and shall not
permit any Restricted Subsidiary to, engage to any material extent in any business other than a
Similar Business.




ARTICLE V




Successors




          SECTION 5.01. Merger, Consolidation or Sale of All or Substantially All Assets.
(a) The Company shall not consolidate or merge with or into or wind up into (whether or not
the Company is the surviving Person), 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 Company is the surviving Person; or (y) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have been made is a
Person organized or existing under the laws of the jurisdiction of organization of the
Company or 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 Company, expressly assumes all the
obligations of the Company under this Indenture and the Notes pursuant to supplemental
indentures or other documents or instruments in form reasonably satisfactory to the Trustee;




     (3) immediately after giving effect to 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 would be greater
than the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries
immediately prior to such transaction;




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



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     (6) the 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 Company, 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 Company, and




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



          (c) Subject to certain limitations set forth in this Indenture governing release of a
Guarantor from its Guarantee upon the sale, disposition or transfer of a guarantor, no Guarantor
shall, and the Company shall not permit any Guarantor to, consolidate or merge with or into or wind
up into (whether or not a 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 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 related Guarantor’s Guarantee
pursuant to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;




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




     (D) the 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; or




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



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          (d) Subject to certain limitations set forth 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 merge into or transfer all or part of
its properties and assets to another Guarantor or the Company.




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




ARTICLE VI




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 on or with respect
to the Notes;




     (3) failure by the Company or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less than 25% 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 Company or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries, other than Indebtedness owed to the Company or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after
the issuance of the Notes, if both:



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     (a) such default either results from the failure to pay any principal of such
Indebtedness at its Stated 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 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 its
Stated Maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $25.0 million or more at any
one time outstanding;




     (5) failure by the Company or any Significant Subsidiary to pay final judgments
aggregating in excess of $25.0 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;




     (6) the Company 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:




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




     (b) 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;




     (c) 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;




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




     (e) 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:




     (a) is for relief against the Company 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
Company 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;



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     (b) appoints a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company 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 Company 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




     (c) orders the liquidation of the Company 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.



          (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:





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




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




     (iii) 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 25% 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.




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          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 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, 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, however, 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. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.




          SECTION 6.05. Control by Majority. 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 25% 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 security or indemnity against any
loss, liability or expense;



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     (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 (it being understood that
the Trustee does not have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders).




          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 of premium, 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.




          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 Company for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the 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 Company, 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.





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          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 Company (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.




          SECTION 6.13. Priorities. If the Trustee collects any money pursuant to this Article
VI, 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 interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any, and
interest, respectively; and




     (iii) to the Company 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.




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          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 VII




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




     (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.



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          (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 Company. 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 Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.




          (b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
and/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.




          (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 Company shall be sufficient if signed by an Officer of the Company.




          (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.




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          (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 that the Company is required to pay Additional Interest to holders of Notes
pursuant to the Registration Rights Agreement, the Company will provide written notice
(“Additional Interest Notice”) to the Trustee of its obligation to pay Additional Interest
no later than five business days after the occurrence of a Registration Default (as defined in the
Registration Rights Agreement), and the Additional Interest Notice shall set forth the amount of
Additional Interest to be paid by the Company on such payment date. The Trustee shall not at any
time be under any duty or responsibility to any holder of Notes to determine the Additional
Interest, or with respect to the nature, extent, or calculation of the amount of Additional
Interest owed, or with respect to the method employed in such calculation of the Additional
Interest.




          (k) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.




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




          SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the 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.




          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 Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent other than the
Trustee acting in such capacity 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.




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          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 it 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 Issue Date, 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 12 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).




          SECTION 7.07. Compensation and Indemnity. The Company 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 Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.




          The Company and the Guarantors, jointly and severally, shall indemnify the Trustee for, and
hold the Trustee harmless against, any and all loss, damage, claims, liability or expense
(including attorneys’ fees and expenses) 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 Company or any of the Guarantors (including this
Section 7.07) or defending itself against any claim whether asserted by any Holder, the Company or
any Guarantor, or liability in connection with the acceptance, exercise or performance of any of
its powers or duties hereunder). The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of their obligations hereunder. The Company shall defend the claim and the Trustee may
have separate counsel and the Company shall pay the fees and expenses of such counsel. The Company
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.




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





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          To secure the payment obligations of the Company 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 Company. The Holders
of a majority in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the Trustee if:





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




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




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




     (d) the Trustee becomes incapable of acting.



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




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the Company’s expense), the Company 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.




          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 Company. 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.




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          Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’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 the Company. 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 VIII




Legal Defeasance and Covenant Defeasance




          SECTION 8.01. Option To Effect Legal Defeasance or Covenant Defeasance. The Company
may, at their 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 VIII.




          SECTION 8.02. Legal Defeasance and Discharge. Upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.02, the Company 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 Company shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other


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obligations under such Notes
and this Indenture including that of the Guarantors (and the Trustee, on written demand of and at
the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or discharged hereunder:





     (a) the rights of Holders of 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 Company’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 Company’s
obligations in connection therewith; and




     (d) this Section 8.02.



          Subject to compliance with this Article VIII, the Company may exercise their option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.




          SECTION 8.03. Covenant Defeasance. Upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, the Company 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 Company 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
Company’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.





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          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 Company 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 at the Stated Maturity date or on the Redemption Date, as the case
may be, of such principal, premium or interest due on such Notes and the Company must
specify whether such Notes are being defeased to maturity or to a particular Redemption
Date;




     (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee:




     (x) an Opinion of Counsel reasonably acceptable to the Trustee confirming that,
subject to customary assumptions and exclusions,




     (a) the Company 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 Company shall have delivered to the
Trustee:




     (x) 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 such 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; and




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



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     (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 or any other
material
agreement or instrument (other than this Indenture), to which, the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound;



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



     (7) the Company 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 Company 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 interest, but such money need not be segregated from other funds
except to the extent required by law.




          The Company 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 VIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the written request of the Company 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 Company. Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or
interest on any Note and remaining unclaimed for two years after such principal, and premium or
interest has become due and payable shall be paid to the Company on its written request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease.




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          SECTION 8.07. Reinstatement. If the Trustee or Paying Agent is unable to apply any
U.S. 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 Company’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, however, that, if the Company makes any payment of principal of, premium
or interest on any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.




ARTICLE IX




Amendment, Supplement and Waiver




          SECTION 9.01. Without Consent of Holders of Notes. Notwithstanding Section 9.02
hereof, the Company, 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 the assumption of the Company’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 any Company or 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 add a Guarantor under this Indenture;



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     (10) to conform the text of this Indenture, the Guarantees or the Notes to any
provision of the “Description of the Notes” section of the Offering Memorandum to the
extent that such provision in such “Description of the Notes” section was intended to
be a verbatim recitation of a provision of this Indenture, Guarantee or Notes;




     (11) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes as permitted by this Indenture, including 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 as set forth in an Officer’s
Certificate or Opinion of Counsel delivered to the Trustee; or




     (12) to make any other modifications to the Notes or this Indenture of a formal, minor
or technical nature or necessary to correct a manifest error so long as such modification
does not adversely affect the rights of any Holder of the Notes in any material respect.



          Upon the written request of the Company accompanied by resolutions of their boards of
directors authorizing the execution of any such amended or supplemental indenture, and upon receipt
by the Trustee of the documents set forth in Section 7.02 hereof, the Trustee shall join with the
Company 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 Company 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 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 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.




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          Upon the request of the Company accompanied by a resolution of their 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 set forth in Section 7.02
hereof, the Trustee shall join with the Company 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.




          After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company promptly shall mail to the Holders of Notes affected thereby a notice briefly describing
the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.




          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;



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     (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 the Indenture, modify the Guarantees 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 amendment or supplemental indenture that
complies with the Trust Indenture Act as then in effect.




          SECTION 9.04. Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its
Note if the Trustee receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.




          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. 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
Company 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 IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company 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



104









 






receive and (subject to Section
7.01 hereof) shall be fully protected in conclusively 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 Company 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).




          SECTION 9.07. Payment for Consent. Neither the Company nor any Affiliate of the
Company may, 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.




ARTICLE X




Guarantees




          SECTION 10.01. Guarantee. Subject to this Article X, 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 Company
hereunder or thereunder, that: (a) the principal of, interest, premium 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 Company 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 Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, 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.




105









 








          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 Company,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Company 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 VI 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 VI 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.




          Each Guarantee shall remain in full force and effect and continue to be effective should any
petition be filed by or against the Company for liquidation or reorganization, should the Company
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 Company’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.




106









 








          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
any 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 X, 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 existing on the Issue Date hereby agrees that this Indenture
shall be executed on behalf of such Guarantor by its President, one of its Vice Presidents, one of
its Assistant Vice Presidents or other authorized Officers.




          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 Company shall cause any newly created or acquired
Restricted Subsidiary to comply with the provisions of Section 4.15 hereof and this Article X, to
the extent applicable.




          SECTION 10.04. Subrogation. Each Guarantor shall be subrogated to all rights of
Holders of Notes against the Company in respect of any amounts paid by any Guarantor pursuant to
the provisions of Section 10.01 hereof; provided, however, 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 Company under this Indenture or the Notes shall have been paid in full.




107









 








          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 Company or the Trustee is required for the release of such Guarantor’s Guarantee, upon:





     (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 such Guarantor is no
longer a Subsidiary, or all or substantially all the assets of such Guarantor, in each case
other than to the Company or a Restricted Subsidiary and to the extent such sale, exchange
or transfer is made in compliance with the applicable provisions of this Indenture;




     (B) at such time as such Guarantor does not have any Indebtedness outstanding that
would have required such Guarantor to enter into a Guarantee pursuant to Section 4.15;




     (C) the designation of such Guarantor as an Unrestricted Subsidiary; or




     (D) the Company exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article VIII hereof or the Company’s obligations under this Indenture being
discharged in accordance with the terms of this Indenture.



ARTICLE XI




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 heretofore authenticated and delivered, except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has heretofore been
deposited in trust have been delivered to the Trustee for cancellation; or




     (2) (A) all Notes not heretofore 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 are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by such
Trustee in the name, and at the expense, of the Company and the Company or any Guarantor
have 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;



108









 






     (B) no Default with respect to the 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 or any other material agreement or instrument to which the Company
or any Guarantor is a party or by which the Company or any Guarantor is bound;




     (C) the Company has paid or caused to be paid all sums payable by it under this
Indenture; and




     (D) the Company 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 Company 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.




          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 Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited with the 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 Company’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, however, that if the Company has made any payment of principal of,
premium, if any, or interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.




109









 








ARTICLE XII




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, if any, shall control.




          SECTION 12.02. Notices. Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), fax or overnight air courier
guaranteeing next day delivery, to the others’ address:



If to the Company and/or any Guarantor:



c/o Brightstar Corp.

9725 NW 117th Avenue, #300

Miami, Florida 33178

Fax No.: 305-994-3360

Attention: Oscar Fumagali, Treasurer



If to the Trustee:



Deutsche Bank Trust Company Americas

60 Wall Street

MSNYC60-2710

New York, New York 10005

Attention: Trust and Securities Services

                 Account
Manager - Brightstar Corp.




          The Company, 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, however, that any notice or
communication delivered to the Trustee shall be deemed effective only 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.




110









 








          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except that any notice or
communication to the Trustee shall be effective only upon actual receipt thereof.




          If the Company mails a notice or communication to Holders, they 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 Company, 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 Company or any of the Guarantors to the Trustee to take any action under this
Indenture, the Company 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.



          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.



111









 





          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 Company or
any Guarantor or any of their parent companies shall have any liability for any obligations of the
Company 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 WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.




          SECTION 12.09. Consent to Jurisdiction. The Company irrevocably submits to the
jurisdiction of the courts of the State of New York and the courts of the United States of America
located in the Borough of Manhattan, City and State of New York over any suit, action or proceeding
with respect to this Indenture or the transactions contemplated hereby. The Company waives, to the
fullest extent permitted by law, any objection that it may have to the venue of any suit, action or
proceeding with respect to this Indenture or the transactions contemplated hereby in the courts of
the State of New York or the courts of the United States of America, in each case, located in the
Borough of Manhattan, City and State of New York, or that such suit, action or proceeding brought
in the courts of the State of New York or the United States of America, in each case, located in
the Borough of Manhattan, City and State of New York was brought in an inconvenient court and
agrees not to plead or claim the same.




          SECTION 12.10. Waiver of Jury Trial. EACH OF THE COMPANY, 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 12.11. 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 strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services.




          SECTION 12.12. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in
order to help fight the funding of terrorism and money laundering, is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship
or opens an account with the Trustee. The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in order for the Trustee to
satisfy the requirements of the U.S.A. Patriot Act.




112









 








          SECTION 12.13. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Company or its Restricted
Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.




          SECTION 12.14. Successors. All agreements of the Company in this Indenture and the
Notes shall bind their 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 12.15. 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 12.16. 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 12.17. 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 12.18. Qualification of Indenture. If so required pursuant to the terms of
the Registration Rights Agreement, the Company 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 Company, the Guarantors and the Trustee) incurred in connection therewith,
including 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 Company 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]




113









 





	 	 	 	 	 
	 	BRIGHTSTAR CORP.





On behalf of the above named entity,

 	 
	 	By:  	/s/ Oscar Fumagali
 	 
	 	 	Name:  	Oscar Fumagali 	 
	 	 	Title:  	Secretary 	 
	 



	 	 	 	 	 
	 	INTERNATIONAL HOLDINGS, LLC

BRAZILIAN HOLDINGS, LLC

BRIGHTSTAR CORP MOBILE DATA DISTRIBUTION LLC

BRIGHTSTAR RETAIL, LLC

ACCELLULAR, LLC

BRIGHTSTAR VENTURE LLC

INTERNATIONAL WIRELESS SUPPLY SOLUTIONS, LLC

WIRELESS SUPPLY SOLUTIONS, LLC





On behalf of each of the above named entities,

 	 
	 	By:  	/s/ Oscar Fumagali
 	 
	 	 	Name:  	Oscar Fumagali 	 
	 	 	Title:  	Manager 	 
	 



	 	 	 	 	 
	 	BRIGHTSTAR US, INC.

OTBT, INC.





On behalf of each of the above named entities,

 	 
	 	By:  	/s/ Oscar Fumagali
 	 
	 	 	Name:  	Oscar Fumagali 	 
	 	 	Title:  	Secretary 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BRIGHTSTAR ACCESSORIES, LLC



On behalf of the above named entity,

 	 
	 	By:  	/s/ R. Marcelo Claure
 	 
	 	 	Name:  	R. Marcelo Claure 	 
	 	 	Title:  	Manager 	 
	 



	 	 	 	 	 
	 	BRIGHTSTAR E-PIN SOLUTIONS CORP.





On behalf of the above named entity,

 	 
	 	By:  	/s/ R. Marcelo Claure
 	 
	 	 	Name:  	R. Marcelo Claure 	 
	 	 	Title:  	President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Trustee

 	 
	 	By:  	/s/ Wanda Camacho
 	 
	 	 	Name:  	Wanda Camacho 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	 	 
	                                                       
	 	By:  	/s/
Annie Jaghatspanyan
 	 
	 	 	Name:  	Annie Jaghatspanyan 	 
	 	 	Title:  	Vice President 	 
	                                                        




 












 








EXHIBIT A




[FORM OF FACE OF Note]




[Private Placement Legend]



THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “U.S. SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:



(1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) (A “QIB”), OR (B) IT IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE U.S. SECURITIES ACT;



(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE U.S. SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND



(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.



AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE MEANINGS GIVEN
TO THEM BY RULE 902 OF REGULATION S UNDER THE U.S. SECURITIES ACT. THE INDENTURE GOVERNING
THIS SECURITY CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING.”




A-1









 








[Global Note Legend]



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 COMPANY. 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 COMPANY OR THEIR 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.




[Regulation S Temporary Global Note Legend]



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.




A-2









 








CUSIP [          ]

ISIN [          ]1




[RULE 144A][REGULATION S] GLOBAL NOTE

9.500% Senior Note due 2016




			
	No. ___
	 	[$___]






BRIGHTSTAR CORP.



promises to pay to ____________ or registered assigns, the principal sum [set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto] [of _________ United
States Dollars] on December 1, 2016.



Interest Payment Dates: June 1 and December 1, commencing June 1, 2011



Record Dates: May 15 and November 15






 




			
	1	 	144A CUSIP: 109478 AA5
	 
	 	 	Regulation S CUSIP: U6224Y AA7




A-3









 










     IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.



Dated: [          ]




	 	 	 	 	 
	 	BRIGHTSTAR CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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     This is one of the Notes referred to in the within-mentioned Indenture:



	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



A-5









 






	 	 	 	 	 



[FORM OF REVERSE SIDE OF NOTE]




9.500% Senior Note due 2016




          1. INTEREST. Brightstar Corp., a Delaware corporation (the “Company”), promises to
pay interest on the principal amount of this Note at a rate per annum of 9.500% from November 30,
2010 until December 1, 2016. The Company will pay interest on this Note semi-annually in arrears
on June 1 and December 1 of each year commencing on June 1, 2011, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). The
Company will make each interest payment to the Holder of record of this Note on the immediately
preceding May 15 and November 15 (each, a “Record Date”). Interest on this Note will
accrue from the most recent date to which interest has been paid or, if no interest has been paid,
from and including November 30, 2010. The Company 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 rate borne by this Note; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on demand at the rate
borne by this Note. Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months.




          2. METHOD OF PAYMENT. The Company will pay interest on this Note to the Person who is the
registered Holder of this Note at the close of business on May 15 or November 15 (whether or not a
Business Day), as the case may be, next preceding the Interest Payment Date, even if this Note is
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. Cash payment of interest may be
made by check mailed to the Holders at their addresses set forth in the Note Register of Holders,
provided, however, that (a) all cash payments of principal, premium, if any, and
interest on Notes represented by Global Notes registered in the name of or held by DTC or its
nominee will be made by wire transfer of immediately available funds to the accounts specified by
the Holder or Holders thereof and (b) all cash payments of principal, premium, if any, and interest
with respect to certificated Notes will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion). 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, Deutsche Bank Trust Company Americas, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act
in any such capacity.




          4. INDENTURE. The Company issued the Notes under an Indenture, dated as of November 30, 2010
(the “Indenture”), among Brightstar Corp., the Guarantors party thereto and the Trustee.
This Note is one of a duly authorized issue of notes of the Company designated as its 9.500% Senior
Notes due 2016. The Company shall be entitled to issue Additional Notes



A-6









 






pursuant to Section 2.01 and 4.09 of the Indenture. The terms of the Notes include those
stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the
Indenture 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. All defined terms and rules of construction contained in the Indenture are expressly
incorporated in this Note unless otherwise indicated.




          5. OPTIONAL REDEMPTION.




          (a) Except as described below under clauses 5(b), 5(c) and 5(d) hereof, the Notes will not be
redeemable at the Company’s option.




          (b) At any time prior to December 1, 2014, the Company may redeem all or a part of the 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, if any, to 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) At any time prior to December 1, 2014, the Company 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 109.500% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to
the Redemption Date, subject to the right of Holders of record on the relevant Record Date to
receive interest due on the relevant Interest Payment Date, with the net cash proceeds received of
one or more Equity Offerings; provided, however, that at least 65% of the aggregate
principal amount of Notes (which includes Additional Notes, if any) remains outstanding immediately
after the occurrence of each such redemption (other than Notes held, directly or indirectly, by the
Company or Subsidiaries of the Company) and such redemption occurs within 90 days after the date of
the related Equity Offering.




          (d) On and after December 1, 2014, the Company may redeem the Notes, in whole or in part at
the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed)
set forth below, plus accrued and unpaid interest, if any, to the Redemption Date, subject to the
right of Holders 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 December 1 of each
of the years indicated below:




	 	 	 	 	 
	Year	 	Percentage	 
	2014
	 	 	104.750	%
	2015 and thereafter
	 	 	100.000	%






          (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Article III of the Indenture.




          6. MANDATORY REDEMPTION. The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.




A-7









 








          7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption will
be mailed by first-class mail 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 VIII or Article XI 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, unless all of the Notes held
by a Holder are to be redeemed. On and after the Redemption Date, interest ceases to accrue on
this Note or portions thereof called for redemption.




          8. OFFERS TO REPURCHASE. Upon the occurrence of a Change of Control, the Company shall make a
Change of Control Offer in accordance with Section 4.14 of the Indenture. In connection with
certain Asset Sales, the Company shall make an Asset Sale Offer as and when provided in accordance
with Section 4.10 of the Indenture.




          9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 thereafter. 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 Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company 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.




          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 25% 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
notice of any continuing Default (except a Default relating to the payment of principal, premium,
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



A-8









 






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, or interest on, any of the
Notes held by a non-consenting Holder. The Company is required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company 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 Company 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. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THE NOTES AND THE GUARANTEES RELATING TO THE NOTES, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES.




          15. CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be
printed on the Notes and the Trustee may use CUSIP and ISIN 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.




          The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to the Company at the following address:



Brightstar Corp.

9725 NW 117th Avenue, #300

Miami, Florida 33178

Fax: 305-994-3360

Attention: Oscar Fumagali, Treasurer




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 Company. The agent may substitute another to act for
him.



Date: _____________________




	 	 	 	 	 
	 	 	 
	 	Your Signature:  	
 	 
	 	 	(Sign exactly as your name appears on 	 
	 	 	the face of this Note) 	 
	 




			
	Signature Guarantee*:	 	
  








	 	 	 
	*	 	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 Company pursuant to Section 4.10 or
4.14 of the Indenture, check the appropriate box below:



[   ] Section 4.10          [   ] Section 4.14



If you want to elect to have only part of this Note purchased by the Company pursuant to Section
4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased:




$_______________




Date: _____________________




	 	 	 	 	 
	 	 	 
	 	Your Signature:  	
 	 
	 	 	(Sign exactly as your name appears on 	 
	 	 	the face of this 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:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of increase	 	 	Principal Amount of	 	 	Signature of	 
	 	 	 	 	 	 	in Principal	 	 	this Global Note	 	 	authorized signatory	 
	 	 	Amount of decrease	 	 	Amount of this	 	 	following such	 	 	of Trustee or	 
	Date of Exchange	 	in Principal Amount	 	 	Global Note	 	 	decrease or increase	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






A-12









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Brightstar Corp.

9725 NW 117th Avenue, #300

Miami, Florida 33178

Fax: [•]

Attention: [•]




Deutsche Bank Trust Company Americas

60 Wall Street

New York, New York

Fax No.: 732-578-4635

Attention: Trust and Securities Services



Re: 9.500% Senior Notes due 2016




          Reference is hereby made to the Indenture, dated as of November 30, 2010 (the
“Indenture”), among Brightstar Corp., the Guarantors a party thereto 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. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT 144A
GLOBAL NOTE OR RELEVANT 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. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT
REGULATION S GLOBAL NOTE OR RELEVANT 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 the Initial Purchasers). 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. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
RELEVANT 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) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;




     or




     (b) [ ] such Transfer is being effected to the Company or a subsidiary thereof;




     or




     (c) [ ] such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.



          4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.




          (a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to


B-2









 







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) [ ] 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) [ ] 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 Company.



	 	 	 	 	 
	 	[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)	 	[ ] a beneficial interest in the:






	 	(i)	 	[ ] 144A Global Note (CUSIP: 109478 AA5), or
	 
	 	(ii)	 	[ ] Regulation S Global Note (CUSIP: U6224Y AA7), or






	(b)	 	[ ] a Restricted Definitive Note.






	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]





	(a)	 	[ ] a beneficial interest in the:






	 	(i)	 	[ ] 144A Global Note (CUSIP:      ), or
	 
	 	(ii)	 	[ ] Regulation S Global Note (CUSIP:        )or
	 
	 	(iii)	 	[ ] Unrestricted Global Note (       ); or






	(b)	 	[ ] a Restricted Definitive Note; or
	 
	(c)	 	[ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.






ANNEX-1









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Brightstar Corp.

9725 NW 117th Avenue, #300

Miami, Florida 33178

Fax: [•]

Attention: [•]




Deutsche Bank Trust Company Americas

60 Wall Street

New York, New York

Fax No.: 732-578-4635

Attention: Trust and Securities Services



Re: 9.500% Senior Notes due 2016




          Reference is hereby made to the Indenture, dated as of November 30, 2010 (the
“Indenture”), among Brightstar Corp., the Guarantors a party thereto 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) [ ] 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) [ ] 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) [ ] 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) [ ] 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) [ ] 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



C-2









 







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.




     b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [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 Company 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 Brightstar Corp., a
Delaware corporation, (the “Company”), and Deutsche Bank Trust Company Americas as trustee
(the “Trustee”).



W I T N E S S E T H




     WHEREAS, each of Brightstar Corp. 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 30, 2010, providing for the issuance of an unlimited aggregate principal
amount of 9.500% Senior Notes due 2016 (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 Company’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 as follows:



     (1) Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture and the rules of construction contained in the
Indenture will apply equally to this Supplemental Indenture.



     (2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:



     (a) Along with all other Guarantors named in the Indenture (including pursuant to any
supplemental indentures), 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 Company hereunder or thereunder, that:




     (i) the principal of and interest and premium, 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 Company to the
Holders or the Trustee thereunder shall be promptly paid in full or performed, all
in accordance with the terms 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 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 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.



          (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 Company or any other Guarantor, 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 Guaranteeing Subsidiary hereby waives: diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands whatsoever.




          (d) This Guarantee shall not be discharged except by complete performance of the obligations
contained in the Notes, the Indenture and this Supplemental Indenture. The Guaranteeing Subsidiary
accepts all obligations applicable to a Guarantor under the Indenture, including Article X of the
Indenture (which is deemed incorporated in this Supplemental Indenture and applicable to this
Guarantee) and, as applicable, Section 12.09 of the Indenture. The Guaranteeing Subsidiary
acknowledges that by executing this Supplemental Indenture, it will become a Subsidiary Guarantor
under the Indenture and subject to all the terms and conditions applicable to Subsidiary Guarantors
contained therein.




          (e) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company 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 VI 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 VI 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 X of the Indenture, this Guarantee shall be limited to the maximum amount
permissible such that the obligations of the Guaranteeing Subsidiary under this Guarantee will not
constitute a fraudulent transfer or conveyance.




          (j) This Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Company for liquidation, reorganization, should the Company
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 Company’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 an unsecured senior obligation of such Guaranteeing Subsidiary,
ranking pari passu in right of payment 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, amalgamate or merge with or into or wind up into (whether or not
the Company 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, amalgamation 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 and, if applicable, the performance of the covenants and
obligations of such Guaranteeing Subsidiary;




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




          (D) the 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 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
Company.




          (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 Company 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 such
the Guaranteeing Subsidiary (including any sale, exchange or transfer), after which the
Guaranteeing Subsidiary is no longer a Subsidiary, or all or substantially all the assets of the
Guaranteeing Subsidiary, in each case other than to the Company or a Restricted Subsidiary and to
the extent such sale, exchange or transfer is made in compliance with the applicable provisions of
this Indenture;




          (B) at such time as the guaranteeing Subsidiary does not have any Indebtedness outstanding
that would have required the guaranteeing Subsidiary to enter into a Guarantee pursuant to Section
4.15 of the Indenture;




          (C) the designation of the Guaranteeing Subsidiary as an Unrestricted Subsidiary; or




          (D) the Company exercising its Legal Defeasance option or Covenant Defeasance option in
accordance with Article VIII of the Indenture or the Company’s obligations under the Indenture
being discharged in accordance with the terms of the Indenture.




          (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
Company 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 WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.




          (8) Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.




          (9) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.




          (10) 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 Company 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, however, 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 Company 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.




 









 








          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:  	 	 
	 



	 	 	 	 	 
	 	BRIGHTSTAR CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: