THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS
OF A REGISTRATION RIGHTS AGREEMENT AMONG THE WESTERN UNION COMPANY AND THE INITIAL PURCHASERS, DATED AS OF NOVEMBER 17, 2006 (THE “REGISTRATION RIGHTS AGREEMENT”). THE ISSUER WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A
HOLDER WITHOUT CHARGE UPON WRITTEN REQUEST TO IT AT ITS PRINCIPAL PLACE OF BUSINESS. THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY OF THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN THE FORMS OF EXHIBITS TO THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR
A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND,
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE 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.
The Western Union Company, a Delaware corporation (the “Company”, which term
includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to Cede & Co., or its registered assigns, the principal sum of
[ ] DOLLARS ($[ ]), or such other amount as indicated on the Schedule of Exchanges of Notes attached
hereto, on November 17, 2008.
Issue Date: November 17, 2006.
Interest Payment Dates: February 17, May 17, August 17 and November 17, commencing February 17, 2007.
Regular Record Dates: February 2, May 2, August 2 and November 2
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which shall for all purposes have the same effect as if
set forth at this place.
[Signature page follows]
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly
otherwise defined herein shall have the meanings ascribed to such terms in the Indenture dated as of November 17, 2006 between the Company and Wells Fargo Bank, National Association, as Trustee (as amended from time to time, the
“Bridge Loan Facility” means the $2.4 billion credit agreement dated as of
September 27, 2006, among First Financial Management Corporation, a wholly owned Subsidiary of the Company, the lenders party thereto and Citicorp North America, Inc., as administrative agent, and any refinancings thereof.
“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 to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate notes of comparable maturity to the remaining term of such Notes.
“Calculation Agent” means a financial institution appointed by the Company to calculate the interest rate payable on this
Note in respect of each Interest Period, which Calculation Agent shall initially be the Trustee.
Price” means, with respect to any redemption date, (i) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if
the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Date” with respect to an Interest Period will be the second London Banking Day preceding the first day of such Interest Period.
“Guarantee Obligation” means as to any Person (the “guaranteeing person”), and without duplication, any obligation of (a) the guaranteeing person or (b) another Person (including, without
limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing the payment or in effect guaranteeing the
payment of any Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) 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 (iii) 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; provided, however, that the term Guarantee Obligation shall not include (x) endorsements of instruments for deposit or collection in the ordinary course of business or (y) any bond or guarantee
given by the Company or any Subsidiary on behalf of any Subsidiary solely for the performance of contractual obligations with customers or on behalf of customers in the ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary payment obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which
such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith.
“Guarantor” means each Person that executes a supplemental indenture to the Indenture providing for the guaranty of the payment of the
Notes pursuant to the terms hereof, or any successor obligor under its Note Guaranty pursuant to the terms hereof, in each case unless and until such Guarantor is released from its Note Guaranty pursuant to the terms hereof.
“Interest Period” means the period commencing on and including an interest payment date and ending on and including the day immediately
preceding the next succeeding interest payment date, with the exception that the first Interest Period shall commence on and include the issue date and end on and include February 16, 2007.
“LIBOR,” with respect to an Interest Period, will be the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a
three-month period beginning on the second London Banking Day after the Determination Date that appears on Telerate Page 3750 as of 11:00 a.m., London time, on the Determination Date. If Telerate Page 3750 does not include such a rate or is
unavailable on a Determination Date, the Calculation Agent will request the principal London office of each of four major banks in the London interbank market, as selected by the Calculation Agent, to provide such bank’s offered quotation
(expressed as a percentage per annum), as of approximately 11:00 a.m.,
London time, on such Determination Date, to prime banks in the London interbank market for deposits in a Representative Amount in U.S. dollars for a
three-month period beginning on the second London Banking Day after the Determination Date. If at least two such offered quotations are so provided, the rate for the Interest Period will be the arithmetic mean of such quotations. If fewer than two
such quotations are so provided, the Calculation Agent will request each of three major banks in New York City, as selected by the Calculation Agent, to provide such bank’s rate (expressed as a percentage per annum), as of approximately 11:00
a.m., New York City time, on such Determination Date, for loans in a Representative Amount in U.S. dollars to leading European banks for a three-month period beginning on the second London Banking Day after the Determination Date. If at least two
such rates are so provided, the rate for the Interest Period will be the arithmetic mean of such rates. If fewer than two such rates are so provided, then the rate for the Interest Period will be the rate in effect with respect to the immediately
preceding Interest Period.
“London Banking Day” is any day on which dealings in U.S. dollars are transacted or, with
respect to any future date, are expected to be transacted in the London interbank market.
“Note Guaranty” means the
guaranty of the Notes by a Guarantor pursuant to the terms hereof.
“Primary Treasury Dealer” means a primary U.S.
Government securities dealer in New York City.
“Quotation Agent” means the Reference Treasury Dealer appointed by the
“Reference Treasury Dealer” means (i) each of Citigroup Global Markets Inc. and Morgan Stanley &
Co. Incorporated (each a Primary Treasury Dealer) and three other Primary Treasury Dealers selected by the Company, and their respective successors; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer,
the Company will substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by the Company.
“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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated
November 17, 2006, between the Company and the Initial Purchasers named therein.
“Representative Amount” means a
principal amount of not less than $1,000,000 for a single transaction in the relevant market at the relevant time.
Credit Facility” means the $1.5 billion credit agreement dated as of September 27, 2006, among the Company, the lenders party thereto and Citibank, N.A., as administrative agent, and any refinancings thereof, as such agreement may be
amended, modified, supplemented, extended, renewed, refinanced or replaced or substituted from time to time.
Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such redemption date.
2. Principal and Interest.
The Company promises to pay the principal of this Note on November 17, 2008.
The Company promises to pay interest on the principal amount of this Note on each interest payment date, as set forth on the face of this Note, at a rate
per annum, reset quarterly, equal to LIBOR plus 0.15%, as determined by the Calculation Agent (subject to adjustment as provided below) . The amount of interest for each day that this Note is outstanding (the “Daily Interest
Amount”) will be calculated by dividing the interest rate in effect for such day by 360 and multiplying the result by the principal amount of the Note then outstanding. The amount of interest to be paid on this Note for each Interest Period
will be calculated by adding the Daily Interest Amounts for each day in the Interest Period. All percentages resulting from any of the above calculations will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point,
with five one-millionths of a percentage point being rounded upwards (e.g. 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with
one-half cent being rounded upwards). The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application. The Calculation Agent will, upon
the request of any Holder of this Note, provide the interest rate then in effect with respect to this Note. All calculations made by the Calculation Agent in the absence of manifest error will be conclusive for all purposes and binding on the
Company and the Holder of this Note.
Interest shall be payable quarterly (to the holders of record of this Note at the close of business on
the February 2nd, May 2nd, August 2nd or
November 2nd immediately preceding the interest payment date) on each interest payment date, commencing
February 17, 2007.
The Holder of this Note is entitled to the benefits of the Registration Rights Agreement. In the event that
(i) neither the Exchange Offer Registration Statement (as defined in the Registration Rights Agreement) nor the Shelf Registration Statement (as defined in the Registration Rights Agreement) is filed with the Commission on or prior to the
270th calendar day following the Issue Date, (ii) no Shelf Registration Statement has been filed and the
Exchange Offer Registration Statement is not declared effective on or prior to the 330th calendar day following the
Issue Date or (iii) the Exchange Offer (as defined in the Registration Rights Agreement) is not consummated and the Shelf Registration Statement is not declared effective on or prior to the 360th calendar day following the Issue Date, then a special interest premium (the “Special Interest Premium”) will accrue from and including the
next calendar day following each of (a) such 270-day period in the case of clause (i) above, (b) such 330-day period in the case of clause (ii) above and (c) such 360-day period in the case of clause (iii) above, in
each case at a rate equal to 0.25% per annum. If the Exchange Offer Registration Statement is not declared effective on or prior to the 330th calendar day following the Issue Date and the Company requests holders of this Note to provide the information called for by the Registration Rights Agreement for inclusion in the Shelf Registration
Statement, the Notes owned by holders who do not deliver such information to the Company when required pursuant to the Registration Rights Agreement shall not be entitled to any such increase in the interest rate for any day after the
330th day following the Issue Date. Upon (1) the filing of an Exchange Offer Registration Statement or a Shelf
Registration Statement after the 270-day period described in clause (i) above, (2) the effectiveness of the Exchange Offer Registration Statement or the filing of such Shelf Registration Statement after the 330-day period described in
clause (ii) above or (3) the consummation of the Exchange Offer or the effectiveness of a Shelf Registration Statement, as the case may be, after the 360-day period described in clause (iii) above, the interest rate on this Note from
the day of such filing, effectiveness or consummation, as the case may be, shall be reduced to the original interest rate set forth on the face of this Note.
If a Shelf Registration Statement is declared effective pursuant to the foregoing paragraphs, and if the Company fails to keep such Shelf Registration Statement continuously (x) effective or (y) useable for
resales for the period required by the Registration Rights Agreement due to certain circumstances relating to pending corporate developments, public filings with the Commission and similar events, or because the prospectus contains an untrue
statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and such failure
continues for more than 120 days (whether or not consecutive) in any twelve-month period (the 121st day being referred to as the “Default Day”), then from and including the Default Day until the earlier of (i) the date that the Shelf
Registration Statement is again deemed effective or is usable, (ii) the date that is the second anniversary of the Issue Date (or, if Rule 144(k) is amended to provide a shorter restrictive period, such shorter period), or (iii) the date
as of which all of the Notes are sold pursuant to the Shelf Registration Statement, the Special Interest Premium in respect of this Note shall accrue at a rate equal to 0.25% per annum.
Interest on this Note shall accrue from the most recent date to which interest has been paid on this Note or the Note surrendered in exchange for this
Note (or, if there is no existing default in the payment of interest and if this Note is authenticated between a regular record date and the next interest payment date, from such interest payment date) or, if no interest has been paid, from the
Issue Date. Interest shall be computed in the basis of a 360-day year of twelve 30-day months.
Interest not paid when due and any interest
on principal, premium or interest not paid when due shall be paid to the Persons that are Holders on a special record date, which shall be the 15th day preceding the date fixed by the Company for the payment of such interest, whether or not such day
is a Business Day. At least 15 days before a special record date, the Company shall send to each Holder and to the Trustee a notice that sets forth the special record date, the payment date and the amount of interest to be paid.
This is one of
the Securities issued under the Indenture. Capitalized terms used herein are used as defined in the Indenture unless otherwise indicated. The terms of this Note includes those stated in or otherwise provided in accordance with the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act. This Note is subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of this Note shall control.
This Note is a general unsecured obligations of the Company. The Indenture does not limit the original aggregate principal amount of the Notes, or any additional Securities that may be issued pursuant to the
Indenture, and the Notes and all such additional Securities vote together for all purposes as a single class. This Note is guaranteed, if at all, as set forth below.
4. Redemption and Repurchase; Discharge Prior to Redemption or Maturity.
On or after May 17, 2007, the Company may redeem the Notes at its option, in whole or in part, at a redemption price equal to 100% of the principal
amount of the Notes to be redeemed plus accrued interest thereon to the date of redemption.
There is no sinking fund or mandatory
redemption applicable to this Note.
If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the
then outstanding principal of, premium, if any, and accrued interest on this Note to redemption or maturity, the Company may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of its obligations
under certain provisions of the Indenture.
In addition to the covenants set forth in Article 4 of the Indenture, this Note is subject to the following additional covenant:
a. Limitation on Indebtedness of Restricted Subsidiaries. The Company will not permit any Restricted Subsidiaries, directly or indirectly, to
create, incur, assume or suffer to exist any Indebtedness (which for purposes hereof shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted
Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Revolving Credit Facility, the Company’s 5.400% Notes due 2011, 5.930% Notes due 2016, 6.200% Notes due 2036 or the Notes, (B) the Bridge Loan
Facility (and any Guarantee Obligations in respect thereof) and (C) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A), (B) or (C)), (y) the
aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered
by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness
shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the ordinary course of business consistent with past practice,
(b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the
Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations
to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days
overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to
Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a Restricted Subsidiary or is merged with or into the
Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred,
assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of this covenant.
The Notes are in registered form
without coupons in denominations of $1,000 principal amount and any multiple of $1,000 in excess thereof. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Trustee may require a Holder to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. Pursuant to the Indenture, there shall be certain periods during which the Trustee may not be required to issue, register
the transfer of or exchange any Note or certain portions of a Note.
7. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may declare all
the Notes to be due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain
limitations provided in the Indenture, Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of remedies.
8. Note Guaranty.
a. Guarantor Accession. If on the Issue Date, after giving effect to
the use of proceeds from Securities issued on the Issue Date, the sum (the “Guarantee Triggering Amount”) of (1), the outstanding aggregate principal amount of Indebtedness under the Bridge Loan Facility, plus (2) the
outstanding aggregate principal amount of all other Indebtedness of any Restricted Subsidiary that is subject to limitation under Section 5(a) above, plus (3) the aggregate amount of indebtedness secured by Liens permitted under clause
(11) of the definition of “Permitted Liens” contained in the Indenture plus (4) the discounted
present value of all net rentals payable under leases covered by Section 4.08(a) of the Indenture (and not expressly excluded therefrom) exceeds the
greater of $300 million or 15% of Consolidated Net Worth, then the Company shall, at its own expense:
(A) cause each such
Subsidiary that has outstanding Indebtedness under the Bridge Loan Facility to duly execute and deliver to the Trustee a supplemental indenture to the Indenture providing for the unconditional, absolute and, except as provided herein, irrevocable
Note Guaranty of the full and punctual payment of all amounts due with respect to the Notes by such Subsidiary without recourse to any other Person and otherwise on substantially the same terms as any analogous guaranty with respect to the Revolving
Credit Facility; and
(B) within 30 days of the date of such supplemental indenture, deliver to the Trustee, (1) an
Officers’ Certificate attesting to the solvency of such Subsidiary, (2) a copy of the resolutions of the board of directors of such Subsidiary authorizing the execution, delivery and performance of such Note Guaranty and (3) a signed
copy of a favorable Opinion of Counsel, addressed to the Trustee, of counsel for such Subsidiary (which counsel may be in-house counsel) as to (x) the matters contained in clause (A) above, (y) such Note Guaranty being the legal,
valid and binding obligation of such Subsidiary enforceable in accordance with its terms (subject to customary exceptions) and (z) such other matters as the Trustee may reasonably request.
Limitation on Amount of Guaranty. Notwithstanding anything to the contrary herein or in the Indenture, each Guarantor, and by its acceptance of
this Note, each Holder hereby confirms that it is the intention of all such parties that the Note Guaranty of such Guarantor not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the United States Bankruptcy
Code or any comparable provision of state law. To effectuate that intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under its Note Guaranty are limited to the maximum amount that
would not render the Guarantor’s obligations subject to avoidance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of state law.
Execution and Delivery of Guaranty. The execution by each Guarantor of a supplemental indenture evidences the Note Guaranty of such Guarantor,
whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note Guaranty set forth
in the Indenture on behalf of each Guarantor.
b. Release of Guaranty. The Note Guaranty of a Guarantor will terminate upon:
a sale or other disposition (including by way of consolidation or merger, other than a consolidation or merger with or into the Company) of the Guarantor or the sale or disposition
of the assets of the Guarantor as an entirety or substantially as an entirety (in each case other than to the Company) otherwise permitted by the Indenture;
the Guarantee Triggering Amount being reduced to an amount equal to or less than the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that if at
the time of such reduction a Guarantor guarantees any of the Company’s obligations under the Revolving Credit Facility, the guarantee of such Guarantor will not terminate under this clause (ii) until such Guarantor does not guarantee the
Company’s obligations under the Revolving Credit Facility;
a consolidation or merger of the Guarantor with or into the Company; or
defeasance or discharge of the Notes, as provided in Section 8.05 of the Indenture.
Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in order to evidence the
release of the Guarantor from its obligations under its Note Guaranty.
c. Consolidation, Merger or Sale of Assets by a Guarantor.
No Guarantor may
consolidate with or merge with or into any Person; or
sell, convey, transfer or otherwise dispose of its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person; or
permit any Person to merge with or into the Guarantor
(A) the other Person is the Company or any Restricted Subsidiary that is Guarantor or becomes a Guarantor
concurrently with the transaction; or
(B)(i) either (x) the Guarantor is the continuing Person or (y) the resulting,
surviving or transferee Person expressly assumes by supplemental indenture all of the obligations of the Guarantor under its Note Guaranty; and
(ii) immediately after giving effect to the transaction, no Event of Default has occurred and is continuing; or
(C) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the
Company) otherwise permitted by the Indenture.
9. Amendment and Waiver.
The Indenture and this Note may be amended, or default thereunder may be waived, in accordance with provisions set forth in the Indenture.
is not valid until the Trustee (or Authenticating Agent) signs the certificate of authentication on the other side of this Note.
11. Governing Law.
The laws of the State of New York shall govern this Note, without regard to conflicts of law
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors Act).
The Company shall furnish a copy of the Indenture to
any Holder upon written request and without charge.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights there under, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the
Company with full power of substitution in the premises.
In connection with any transfer of this Note occurring prior to the date that is two years after the later of the Issue
Date and the last date on which the Company or any affiliate of the Company was the owner of this Note (or any predecessor of this Note), the undersigned confirms that:
(a) This Note is being transferred to the Company or a Subsidiary of the Company.
(b) This Note is being transferred pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended (the “Securities
(c) This Note is being transferred to a person who the seller reasonably believes is a “qualified institutional buyer” as defined in Rule 144A (“Rule
144A”) under the Securities Act that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A.
(d) This Note is being transferred outside the United States in accordance with Rule 903 or 904 of Regulation S under the Securities Act.
(e) This Note is being transferred pursuant to another exemption from the registration requirements of the Securities Act.
In addition, in each of the cases set forth above, such transfer will be in accordance with any applicable securities laws of any State of the United
States or other jurisdictions.
In connection with any offer, sale or transfer pursuant to (d) or (e) above, the Company and the
Trustee shall have the right, prior any such offer, sale or transfer, to require the delivery of an opinion of counsel, certification or other information reasonably satisfactory to each of them.
If none of the foregoing boxes is checked, the Trustee is not obligated to register this Note in the name of any Person other than the Holder hereof
and until the conditions to any such transfer of registration set forth herein and in the Indenture have been satisfied.
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any
To be executed by an executive officer
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Registered Global Security for other Securities or a part of another Registered Global Security have been made:
Date of Exchange
Amount of decrease in principal amount of this Registered Global Security
Amount of increase in principal amount of this Registered Global Security
Principal amount of this Registered Global Security following such decrease (or increase)