EX-4.1



 







Exhibit 4.1




GameStop Corp.,

as the Issuer, and



The Subsidiary Guarantors party hereto,

as the Subsidiary Guarantors


DEBT SECURITIES


 




INDENTURE



Dated as of                     ,           




 






[Insert name of Trustee],

as Trustee





 









 








Exhibit 4.1




CROSS-REFERENCE TABLE








	 	 	 	 	 
	     Trust Indenture Act Section	 	Indenture Section
	 
	$	310	(a)(1)
	 	7.10
	 	 	(a)(2)
	 	7.10
	 	 	(a)(3)
	 	Not applicable
	 	 	(a)(4)
	 	Not applicable
	 	 	(a)(5)
	 	7.10
	 	 	(b)
	 	7.03, 7.08, 7.10
	$	311	(a)
	 	7.03
	$	312	(a)
	 	3.04
	 	 	(b)
	 	14.02
	 	 	(c)
	 	14.02
	$	313	(a)(1)-(5) & (7)-(8)
	 	7.06
	 	 	(a)(6)
	 	Not applicable
	 	 	(b)(1)
	 	Not applicable
	 	 	(b)(2)
	 	7.07
	 	 	(c)
	 	7.06
	 	 	(d)
	 	7.06
	$	314	(a)(1)-(3)
	 	7.06
	 	 	(a)(4)
	 	4.05
	 	 	(b)
	 	Not applicable
	 	 	(c)(1)
	 	14.03
	 	 	(c)(2)
	 	14.03
	 	 	(c)(3)
	 	Not applicable
	 	 	(d)
	 	Not applicable
	 	 	(e)
	 	14.04
	$	315	(a)
	 	7.01
	 	 	(b)
	 	7.05
	 	 	(c)
	 	7.02
	 	 	(d)
	 	7.02
	 	 	(e)
	 	6.12
	$	316	 (a)(1)
	 	6.04, 6.05
	 	 	(b)
	 	6.08
	 	 	(c)
	 	9.03
	$	317	(a)(1)
	 	6.09
	 	 	(a)(2)
	 	6.10
	 	 	(b)
	 	3.05
	$	318	(a)
	 	14.01






Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.




 









 





     INDENTURE, dated as of                     ,      , between GAMESTOP CORP., a Delaware corporation
(the “Company”), the SUBSIDIARY GUARANTORS party hereto, and [Insert name of Trustee], as trustee (the “Trustee”).



RECITALS




     The Company is authorized to borrow money for its corporate purposes and to issue debentures,
notes or other evidences of indebtedness therefor; and for its corporate purposes, the Company has
determined to make and issue its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”), as herein provided, up to such principal amount or
amounts as may from time to time be authorized by or pursuant to the authority granted in one or
more resolutions of the Board of Directors of the Company. All things necessary to make this
Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have
been done.



     The Issuer, the Subsidiary 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 Securities:



ARTICLE
ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




     SECTION 1.01 Definitions.



     “Affiliate” has the meaning specified in Rule 405 of the Securities Act.



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



     “Agent Members” has the meaning specified in Section 2.02(a).



     “Attributable Value” means, as to any particular lease under which any Person is at the time
liable and at any date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term thereof as
determined in accordance with GAAP, discounted from such initial term to the date of determination
at a rate per annum equal to the discount rate which would be applicable to a Capital Lease
Obligation with a like term in accordance with GAAP. The net amount of rent required to be paid
under any such lease for any such period shall be the lesser of: (1) the aggregate amount of rent
payable by the lessee with respect to such period after excluding amounts required to be paid on
account of insurance, taxes, assessments, utility, operating and labor costs and similar charges
and (2) in the case of any lease which is terminable by the lessee upon the payment of a penalty,
the net amount calculated pursuant to (1) but adjusted to also include the amount of such penalty
and to exclude any rent which would otherwise be required to be paid under such lease subsequent to
the first date upon which it may be so terminated.



1









 





     “Authorized Newspaper” means a newspaper published in an official language of the country of
publication of general circulation in the place in connection with which the term is used. If it
shall be impractical in the opinion of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication of such notice.



     “Board of Directors” means the Board of Directors of the Company or any of the Subsidiary
Guarantors, as the case may be, or any duly authorized committee of such Board of Directors.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, or the applicable Subsidiary Guarantor, as the case may be, to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.



     “Business Day” means, except as may otherwise be provided with respect to the Securities of
any series, any day except a Saturday, Sunday or legal holiday on which banking institutions in The
City of New York are authorized or required by law, regulation or executive order to close.



     “Capital Lease Obligations” means any obligation under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP; and the amount of Debt
represented by such obligation shall be the capitalized amount of such obligations determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty. For purposes of Section 4.03 hereof, a
Capital Lease Obligation shall be deemed secured by a Lien on the Property being leased.



     “Capital Stock” means, with respect to any Person, any shares or other equivalents (however
designated) of any class of corporate stock or partnership interests or any other participations,
rights, warrants, options or other interests in the nature of an equity interest in such Person,
including Preferred Stock, but excluding any debt security convertible or exchangeable into such
equity interest.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under the TIA, then the
body performing such duties at such time.



     “Company Order” means a written request or order signed in the name of the Company by the
Chief Executive Officer, the Chief Operating Officer, the President, the Chief Financial Officer,
the Chief Legal Officer, the Treasurer or the Secretary of the Company or any officer of the
Company performing similar functions.



     “Consolidated Net Tangible Assets” of a Person and its Subsidiaries means the sum of the



2









 




Tangible Assets of such Person and its Subsidiaries after deducting all current liabilities
and eliminating intercompany items, all determined in accordance with GAAP, including appropriate
deductions for any minority interest in Tangible Assets of such Subsidiaries after deducting all
current liabilities of such Subsidiaries as determined in accordance with GAAP.




     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, principally be administered, which office is, at the
date of this Indenture, located at     , Attention: Corporate
Trust Department.



     “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official
under Title 11 of the United States Bankruptcy Code.



     “Debt” means, with respect to any Person on any date of determination (without duplication):



     (a) the principal of and premium (if any) in respect of:




     (1) debt of such Person for money borrowed, and




     (2) debt evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable;



     (b) all Capital Lease Obligations of such Person and the Attributable Value relating to the
Sale and Leaseback Transactions entered into by such Person;



     (c) all obligations of such Person for the reimbursement of any obligor on any letter of
credit, bankers’ acceptance or similar credit transaction (other than obligations with respect to
letters of credit securing obligations (other than obligations described in (a) and (b) above)
entered into in the ordinary course of business of such Person to the extent such letters of credit
are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than
the third Business Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit);


The amount of Debt of any Person at any date shall be the outstanding balance, or the accreted
value of such Debt in the case of Debt issued with original issue discount, at such date of all
unconditional obligations as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such date.




     Notwithstanding the foregoing, Debt shall not include (a) any endorsements for collection or
deposits in the ordinary course of business, (b) any realization of a Permitted Lien, and (c) Debt
that has been defeased or satisfied in accordance with the terms of the documents governing such
Debt.



     “Default” means an event or condition the occurrence of which is, or with the lapse of time or
giving of notice or both would be, an Event of Default.



3









 





     “Depositary” means, except as may otherwise be provided with respect to the Securities of any
series, The Depository Trust Company, its nominees, and their respective successors.



     “Event of Default” has the meaning specified in Section 6.01.



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



     “Foreign Subsidiary” means a Subsidiary incorporated or otherwise organized or existing under
the laws of a jurisdiction other than the United States of America, any state thereof or any
territory or possession of the United States of America.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, in effect on the date of this Indenture.



     “Global Securities” means one or more global securities in registered form, substantially in
the form set forth in Exhibit A.



     “Government Obligations” means, with respect to the Securities of any series, securities that
are (i) direct obligations of the government which issued the currency in which the Securities of
such series are denominated for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the currency in which the Securities of such series are denominated for
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the Maturity Date of the Securities of such series, and shall also
include a depository receipt issued by a bank or trust company as custodian with respect to any
such Government Obligation or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository receipt; provided,
that (except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.



     “Guarantee” means any obligation, contingent or otherwise, of any Person guaranteeing any Debt
of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt of
such other Person, or (ii) entered into for the primary purpose of assuring in any other manner the
obligee against loss in respect thereof (in whole or in part); provided, however, that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning.



4









 





     “Holder” or “Securityholder” means the registered holder of any Security.



     “Incur” means, with respect to any Debt or other obligation of any Person, to create, issue,
incur (by merger, conversion, exchange or otherwise), extend, assume, guarantee or become liable in
respect of such Debt or other obligation or the recording, as required pursuant to GAAP or
otherwise, of any such Debt or obligation on the balance sheet of such Person (and “Incurrence” and
“Incurred” shall have meanings correlative to the foregoing); provided, however, that a change in
GAAP that results in an obligation of such Person that exists at such time, and is not theretofore
classified as Debt, becoming Debt shall not be deemed an Incurrence of such Debt; provided further,
however, that any Debt or other obligations of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Subsidiary at the time it becomes a Subsidiary.



     “Indenture” means this Indenture as originally executed or as it may be amended or
supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture, and shall include the forms and terms
of the Securities of each series as contemplated by Sections 2.01 and 3.01.



     “Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.



     “Issue Date,” when used with respect to any Security (or portion thereof), means the earlier
of (i) the date of such Security or (ii) the date of any Security (or portion thereof) for which
such Security was issued (directly or indirectly) on registration of transfer, exchange or
substitution.



     “Lien” means, with respect to any Property of any Person, any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement
(other than any easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such Property (including any Capital Lease Obligation, conditional
sale or other title retention agreement having substantially the same economic effect as any of the
foregoing or any Sale and Leaseback Transaction).



     “Market Exchange Rate” has the meaning specified in Section 3.13.



     “Maturity Date,” when used with respect to any Security, means the date on which the principal
of such Security, or an installment of principal, becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.



     “Officer” means the Chief Executive Officer, the Chief Operating Officer, the President, the
Chief Financial Officer, the Chief Legal Officer, the Treasurer or the Secretary of the Issuer or a
Subsidiary Guarantor, as the case may be, or any officer of any of them performing similar
functions.



5









 





     “Officer’s Certificate” means a certificate signed by an Officer



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



     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 6.02.



     “Paying Agent” has the meaning specified in Section 3.04, except that, for the purposes of
Article Eight, the Paying Agent shall not be the Company or a Subsidiary of the Company or an
Affiliate of any of them. The term “Paying Agent” includes any additional Paying Agent.



     “Payment Default” means, with respect to any Debt, a failure to pay the principal of such Debt
at its Stated Maturity after giving effect to any applicable grace period provided in the
instrument(s) governing such Debt.



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



     “Preferred Stock” means any Capital Stock of a Person, however designated, which entitles the
holder thereof to a preference with respect to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares
of any other class of Capital Stock issued by such Person.



     “principal,” whenever used with reference to any Security or any portion thereof, shall be
deemed to include “and premium, if any.”



     “Property” means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible, including Capital
Stock in, and other securities of, any other Person.



     “Record Date” for the interest payable on any Interest Payment Date on the Securities of any
series means the date specified as such in the terms of the Securities of such series, or, if no
such date is so specified, the close of business on the fifteenth calendar day (whether or not a
Business Day) immediately preceding such Interest Payment Date.



     “Refinancing” means in respect of Debt, any refinancing, extension, renewal, refund,
repayment, prepayment, repurchase, redemption, defeasance or retirement, or any issuance of other
Debt, in exchange or replacement for, such Debt.



     “Registrar” has the meaning specified in Section 3.04.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within



6









 




the corporate trust department of the Trustee, including any vice president, any assistant
vice president, any assistant treasurer, any trust officer or assistant trust officer or any other
officer or assistant officer, customarily performing functions similar to those performed by any of
the above-designated officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.




     “Sale and Leaseback Transaction” means any direct or indirect arrangement relating to Property
now owned or hereafter acquired whereby the Company or a Significant
Subsidiary transfers such Property to another Person and the
Company or such Significant Subsidiary leases it from such Person.



     “Securities” means any of the Securities, as defined in the first paragraph of the recitals
hereof, that are authenticated and delivered under this Indenture.



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



     “Security Register” has the meaning specified in Section 3.04.




     “Senior
Credit Facility” means the Debt represented by the
Credit Agreement, dated as of October 11, 2005, by and among
(i) the Company and certain of the Company’s Subsidiaries,
as Borrowers, (ii) Bank of America, N.A., as Administrative
Agent and Collateral Agent, (iii) Bank of America, N.A. and
Citicorp North America, Inc., as Issuing Banks, (iv) Citicorp
North America, Inc., as Syndication Agent, (v) Merrill Lynch
Capital/A Division of Merrill Lynch Business Financial Services Inc.,
as Documentation Agent, (vi) Bank of America Securities LLC,
Citigroup Global Markets Inc., and Merrill Lynch Capital A
Division of Merrill Lynch Business Financial Services Inc., as Joint
Lead Arrangers and Joint Lead Bookrunners and (vii) the lenders
named therein including any notes, guarantees, collateral and
security documents (including mortgages, pledge agreements and other
security arrangements), instruments and agreements executed in
connection therewith, and in each case as amended or refinanced from
time to time, including any agreement or agreements extending the
maturity of, or refinancing (including increasing the amount of
borrowings or other Debt outstanding or available to be borrowed
thereunder), all or any portion of the Debt, under such agreement,
and any successor or replacement agreement or agreements with the
same or any other agent, creditor, lender or group of creditors or
lenders.




     “Significant
Subsidiary” means any domestic Subsidiary that would be a “significant subsidiary” of the
Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.



     “Stated Maturity,” when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal amount thereof or such installment of principal or interest thereon is due and
payable.



     “Subsidiary” means, in respect of any Person, any corporation, company (including any limited
liability company), association, partnership, joint venture or other business entity of which a
majority of the total voting power of the Voting Stock or other interests (including partnership
interests) is at the time owned or controlled, directly or indirectly, by:




	 	(a)	 	such Person;
	 
	 	(b)	 	such Person and one or more Subsidiaries of such Person; or
	 
	 	(c)	 	one or more Subsidiaries of such Person.





     “Subsidiary Guarantee” means any Guarantee of the Securities by any Subsidiary Guarantor.



     “Subsidiary
Guarantor” means each domestic wholly-owned Subsidiary of the Company that executes this Indenture as a
guarantor on the Issue Date and each other domestic wholly-owned Subsidiary of the Company that
thereafter provides a Subsidiary Guarantee of the Securities pursuant to the terms of this
Indenture, in each case until such Subsidiary Guarantor is released from its



7









 




obligations under its Subsidiary Guarantee pursuant to the terms of this Indenture.




     “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S. Code
§§77aaa-77bbbb), as in effect on the date this Indenture was executed, except as provided in
Section 9.07.



     “Tangible Assets” of any Person means, at any date, the gross value as shown by the accounting
books and records of such Person of all its Property, both real and personal, less the net book
value of (i) all its licenses, patents, patent applications, copyrights, trademarks, trade names,
goodwill, non-compete agreements or organizational expenses and other like intangibles, (ii)
unamortized Debt discount and expense, (iii) all reserves for depreciation, obsolescence, depletion
and amortization of its properties and (iv) all other Property reserves which in accordance with
GAAP should be provided in connection with the business conducted by such Person.



     “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of Article Seven and thereafter means such
successor. If there shall be more than one Trustee at any one time, “Trustee” shall mean or include
each Person who is then a Trustee hereunder and, as used with respect to the Securities of any
series, shall mean only the Trustee with respect to the Securities of that series.



     “United States Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended and as
codified in Title 11 of the United States Code, as amended from time to time hereafter, or any
successor federal bankruptcy law.



     “Voting Stock” of any Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.



     SECTION 1.02 Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have the following
meanings:



          (a) “indenture securities” means the Securities;




          (b) “indenture security holder” means a Holder or a Securityholder;




          (c) “indenture to be qualified” means this Indenture;




          (d) “indenture trustee” or “institutional trustee” means the Trustee; and




          (e) “obligor” on the indenture securities means the Company or any other obligor on the
Securities.




     All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA



8









 




reference to another statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein.




     SECTION 1.03 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
generally accepted accounting principles in the United States in effect at the time of any
computation;




          (c) “or” is not exclusive;




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




          (e) provisions apply to successive events and transactions;




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




          (g) all references to Sections or Articles refer to Sections or Articles of this Indenture
unless otherwise indicated.




ARTICLE
TWO




SECURITY FORMS




     SECTION 2.01 Forms Generally. The Securities of each series and the Trustee’s
certificate of authentication shall be substantially in the form annexed hereto as Exhibit A, or in
such other form as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture. The Securities
of each series may have notations, legends or endorsements required by law, stock exchange
agreements to which the Company is subject or usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement on the Securities.



     The definitive Securities of each series shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other manner, including any
manner permitted by the rules of any securities exchange on which the Securities of such series may
be listed, all as determined by the Officers executing such Securities, as evidenced by their
execution of such Securities.



     SECTION 2.02 Book-Entry Provisions for Global Securities.



          (a) If the Company shall establish pursuant to Section 3.01 that the Securities of a series
are to be issued in whole or in part in one or more Global Securities, then the




9









 




Company shall execute and the Trustee shall, in accordance with Section 3.03, authenticate and
deliver a Global Security or Securities which initially shall (i) be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends.




          Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee as its custodian, or under such Global Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.




          (b) Transfers of a Global Security shall be limited to transfers of such Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees.




          (c) If at any time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.02 shall no longer be applicable to the Securities of
such series and the Company will execute and, subject to Section 3.06, the Trustee will
authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented
by a Global Security and that the provisions of this Section 2.02 shall no longer apply to the
Securities of such series. In such event the Company will execute and, subject to Section 3.06, the
Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. Upon the
exchange of the Global Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section
2.02(c) shall be registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.




10









 





ARTICLE
THREE




THE SECURITIES




     SECTION 3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued from time to time in one or more series. Prior to the issuance of
Securities of any series, there shall be established in or pursuant to (a) one or more Board
Resolutions and set forth in an Officer’s Certificate or (b) one or more indentures supplemental
hereto:



          (i) the title of the Securities of the series, including Cusip numbers (which shall
distinguish the Securities of the series from all other Securities);




          (ii) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Sections 2.02, 3.06, 3.07, 3.09, 9.05 or 11.07);




          (iii) the date or dates on which the Securities of the series may be issued;




          (iv) the date or dates on which the principal of the Securities of the series shall be
payable, or the method of determination thereof;




          (v) the rate or rates (which may be fixed or variable), or the method or methods of
determination thereof, at which the Securities of the series shall bear interest, if any, the date
or dates from which such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Record Dates for the determination of Holders to whom interest is
payable;




          (vi) the place or places where the principal of, and interest, if any, on, the Securities of
the series shall be payable (if other than as provided in Section 4.02);




          (vii) the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in part, at the option
of the Company;




          (viii) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02;




          (ix) the obligation, if any, of the Company to redeem, purchase or repay Securities of the
series pursuant to any sinking fund or analogous provisions or other provisions set forth therein
or at the option of a Holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;




11









 





          (x) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Securities of the series shall be issuable;




          (xi) the form of the Securities of the series, including any legends;




          (xii) if other than U.S. dollars, the currency or currencies or units based on or related to
currencies in which Securities of the series shall be denominated and in which payments of
principal of, and any interest on, Securities of the series, or any other amounts payable with
respect thereto, shall or may be payable;




          (xiii) whether any special terms and conditions relating to the payment of additional amounts
in respect of payments on the Securities of the series shall, in the event of certain changes in
the United States federal income tax laws, apply to such Securities;




          (xiv) whether the Securities of the series are to be issuable in whole or in part in the form
of one or more Global Securities and, in such case, if other than The Depository Trust Company, the
Depositary for such Securities;




          (xv) additional Events of Default with respect to the Securities of the series, if any, other
than those set forth herein;




          (xvi) if either or both of Section 8.02 and Section 8.03 shall be inapplicable to the
Securities of the series (provided, that if no such inapplicability shall be specified, then both
Section 8.02 and Section 8.03 shall be applicable to such Securities);




          (xvii) additional covenants with respect to Securities of the series, if any, other than those
set forth herein;




          (xviii) if other than the Trustee, the identity of the Registrar and any Paying Agent for the
Securities of the series; and




          (xix) any other terms of the Securities of the series and any other deletions from,
modifications of, or additions to this Indenture in respect of such Securities.




     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officer’s Certificate or in any such indenture supplemental hereto. Unless otherwise provided,
a series may be reopened for issuances of additional Securities of such series.



     SECTION 3.02 Denominations. In the absence of any specification pursuant to Section
3.01 with respect to the Securities of any series, the Securities of each series shall be issuable
only in registered form without coupons and only in denominations of $1,000 in principal amount and
any integral multiple thereof, and shall be payable in U.S. dollars.



12









 





     SECTION 3.03 Execution, Authentication, Dating and Delivery. The Securities shall be
executed by two Officers of the Company. The signature of these Officers on the Securities may be
by facsimile or manual signature in the name and on behalf of the Company.



     If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee or authenticating agent authenticates the Security, the Security shall be valid
nevertheless.



     A Security shall not be valid until the Trustee or authenticating agent manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.



     At any time and from time to time after the execution of this Indenture, the Company may
deliver Securities of any series executed by the Company to the Trustee for authentication,
together with a Company Order, and the Trustee or an authenticating agent shall authenticate for
original issue Securities in the aggregate principal amount specified in such Company Order;
provided, that the Trustee shall be entitled to receive the Board Resolution establishing the form
and terms of the Securities of the series pursuant to Sections 2.01 and 3.01, if applicable, an
Officer’s Certificate of the Company and an Opinion of Counsel, in each case pursuant to Section
14.03, in connection with such authentication of Securities. Such Company Order shall specify the
amount of Securities to be authenticated and the date on which the original issue of Securities is
to be authenticated.



     Notwithstanding the provisions of this Section 3.03, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to deliver the Board Resolution,
Officer’s Certificate and Opinion of Counsel otherwise required pursuant to the immediately
preceding paragraph at or prior to the time of authentication of each Security of such series if
such documents are delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued.



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



     Each Security shall be dated the date of its authentication.



     SECTION 3.04 Registrar and Paying Agent. The Company shall maintain an office or
agency where Securities may be presented for registration of transfer or for exchange (the
“Registrar”), an office or agency where Securities may be presented for payment (the “Paying
Agent”) and an office or agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served, which shall be in the Borough of Manhattan, The City
of New York. The Company shall cause the Registrar to keep a register of the Securities of each
series and of their transfer and exchange (the “Security Register”). The Security Register shall be
in written form or any other form capable of being converted into



13









 




written form within a reasonable time. The Company may have one or more co-Registrars and one
or more additional Paying Agents.




     The Company initially appoints the Trustee as Registrar, Paying Agent, authenticating agent
and agent for service of notice and demands. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders
and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee as of each Record Date and at such other times as the Trustee
may reasonably request the names and addresses of Holders as they appear in the Security Register,
including the aggregate principal amount of Securities of each series held by each Holder.



     SECTION 3.05 Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. (New York
City time) on each due date of any principal of or interest on the Securities of any series, the
Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay
such principal and interest so becoming due. The Company shall require each Paying Agent other than
the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of principal of and
interest on the Securities of such series (whether such money has been paid to it by the Company or
any other obligor on the Securities of such series), and such Paying Agent shall promptly notify
the Trustee of any default by the Company (or any other obligor on the Securities of such series)
in making any such payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed.
Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any Subsidiary of the Company or any Affiliate of any of them acts as
Paying Agent, it will, on or before each due date of any principal of or interest on the Securities
of any series, segregate and hold in a separate trust fund for the benefit of the Holders a sum of
money sufficient to pay such principal or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and will promptly
notify the Trustee of its action or failure to act.



     SECTION 3.06 Transfer and Exchange. The Securities of each series are issuable only in
registered form. Prior to the registration of any transfer by a Holder as provided herein, the
Company, the Trustee and any agent of the Company shall treat the Person in whose name the Security
is registered as the owner thereof for all purposes whether or not the Security shall be overdue,
and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.
When Securities of any series are presented to the Registrar or a co-Registrar with a request to
register the transfer or to exchange them for an equal principal amount of Securities of the same
series of other authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met (including that such
Securities are duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Trustee and Registrar duly executed by the Holder thereof or by an attorney who
is authorized in writing to act on behalf of the Holder). To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate Securities at the
Registrar’s request. No service charge shall be made for any



14









 




registration of transfer or exchange of Securities, 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 other similar governmental charge payable upon
exchanges pursuant to Section 3.09 or Section 9.05).




     SECTION 3.07 Replacement Securities. If a mutilated Security is surrendered to the
Trustee or if the Holder claims that the Security has been lost, destroyed or wrongfully taken,
then, in the absence of notice to the Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company shall issue and the Trustee shall authenticate a replacement
Security of the same series of like tenor and principal amount and bearing a number not
contemporaneously outstanding; provided, that the requirements of this Section 3.07 are met. If
required by the Trustee or the Company, an indemnity bond must be furnished that is sufficient in
the judgment of both the Trustee and the Company to protect the Company, the Trustee or any Agent
from any loss that any of them may suffer if a Security is replaced. The Company may charge such
Holder for its expenses and the expenses of the Trustee in replacing a Security. In case any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing a new Security in
replacement thereof.



     Every replacement Security is an additional obligation of the Company and shall be entitled to
the benefits of this Indenture.



     SECTION 3.08 Outstanding Securities. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those as to which defeasance has been effected pursuant to
Section 8.02 and those described in this Section 3.08 as not outstanding.



     If a Security is replaced pursuant to Section 3.07, it ceases to be outstanding unless and
until the Trustee and the Company receive proof satisfactory to them that the replaced Security is
held by a bona fide purchaser.



     If the Paying Agent (other than the Company or an Affiliate of the Company) holds on the
Maturity Date money sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to accrue.



     A Security does not cease to be outstanding because the Company or one of its Affiliates holds
such Security, provided, however, that in determining whether the Holders of the requisite
principal amount of the outstanding Securities of a series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or
any other obligor upon the Securities of such series or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee
has actual knowledge to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the



15









 




Company or of such other obligor.




     SECTION 3.09 Temporary Securities. Until definitive Securities of any series are ready
for delivery, the Company may prepare and execute and the Trustee shall authenticate temporary
Securities of such series. Temporary Securities shall be substantially in the form of definitive
Securities but may have insertions, substitutions, omissions and other variations determined to be
appropriate by the Officers executing the temporary Securities, as evidenced by their execution of
such temporary Securities. If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive Securities of the same
series upon surrender of the temporary Securities at the office or agency of the Company designated
for such purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations. Until so exchanged, the temporary
Securities shall be entitled to the same benefits under this Indenture as definitive Securities of
the same series.



     SECTION 3.10 Cancellation. The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation and shall dispose of them in accordance with its normal
procedure.



     SECTION 3.11 Computation of Interest. Except as otherwise specified as contemplated by
Section 3.01 for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.



     SECTION 3.12 CUSIP Numbers. The Company in issuing the Securities of any series may
use “CUSIP”, “Common Code” or “ISIN” numbers (if then generally in use), and the Company and the
Trustee shall use CUSIP, “Common Code” or “ISIN” numbers, as the case may be, in notices of
exchange as a convenience to Holders; provided, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed on the Securities of
such series or as contained in any notice of exchange and that reliance may be placed only on the
other identification numbers printed on the Securities of such series. The Company shall promptly
notify the Trustee of any change in “CUSIP,” “Common Code” or “ISIN” numbers for the Securities of
any series.



     SECTION 3.13 Securities in a Foreign Currency. Unless otherwise specified with respect
to the Securities of a particular series, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in principal amount of Securities of any series or
all series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any series which are denominated in a currency other than U.S. dollars,
then the principal amount of Securities of such series which shall be deemed to be



16









 




outstanding for the purpose of taking such action shall be that amount of U.S. dollars that
could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 3.13,
“Market Exchange Rate” shall mean the noon U.S. dollar buying rate for that currency for cable
transfers quoted in The City of New York, as certified for customs purposes by the Federal Reserve
Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent available date or
quotations from one or more major banks in The City of New York or in the country of issue of the
currency in question, or such other quotations as the Trustee shall deem appropriate.




ARTICLE
FOUR




COVENANTS




     SECTION 4.01 Payment of Securities. The Company shall pay the principal of and
interest on the Securities of each series on the dates and in the manner provided in the Securities
of such series and this Indenture. An installment of principal or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company
or any Affiliate of any of them) holds on that date money designated for and sufficient to pay the
installment. Upon any bankruptcy or reorganization procedure relative to the Company, the Trustee
shall serve as the Paying Agent, if any, for the Securities.



     SECTION 4.02 Maintenance of Office or Agency. So long as the Securities of any series
shall have been issued and remain outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be served. The Company
will 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 address of the Trustee set forth in
Section 14.02.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, 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 initially designates the Corporate Trust Office of the Trustee as such
office of the Company in accordance with Section 3.04.



     SECTION 4.03 Limitation Upon Liens. The Company will not, and will not permit any of
its Significant Subsidiaries to, Incur or suffer to exist any Lien (other than any Permitted Lien) on Property
owned on the Issue Date or thereafter acquired to secure Debt without making, or



17









 




causing
such Significant Subsidiary to make, effective provision for securing the Securities (and, if the
Company so determines, any other Debt of the Company which is not subordinate to the Securities or
the applicable Subsidiary Guarantee) equally and ratably with such Debt as to such Property so long
as such Debt is so secured.




     “Permitted Liens” means:



          (a) Liens in respect of Debt existing at the Issue Date;




          (b) Liens on Property existing at the time of acquisition thereof;




          (c) Liens to secure the payment of all or any part of the purchase price of Property or any
addition thereto or to secure any indebtedness incurred at the time of, or within 120 days after,
the acquisition of such Property or any addition thereto for the purpose of financing all or any
part of the purchase price thereof; provided that any such Lien may not extend to any Property of
the Company or any Subsidiary, other than the Property acquired, constructed or leased with the
proceeds of such Debt and any improvements or accessions to such Property;




          (d) Liens on Property of a Person existing at the time (i) such Person is merged into or
consolidated with the Company or any Subsidiary or (ii) at such Person becomes a Subsidiary;




          (e) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of setoff or similar rights;




          (f) Liens for taxes or assessments or other governmental charges or levies (including, without
limitation, Liens in favor of customs and revenue authorities to secure payment of customs duties
in connection with the importation of goods in the ordinary course of business), Liens imposed by
law for sums not due or sums being contested in good faith and with respect to which adequate
reserves are being maintained, to the extent required by GAAP, and Liens securing reimbursement
obligations with respect to trade letters of credit, bankers’ acceptances and sight drafts Incurred
in the ordinary course of business which encumber documents and other Property relating to such
trade letters of credit, bankers’ acceptances and sight drafts;




          (g) Liens to secure obligations under workers’ compensation laws or similar legislation,
including Liens with respect to judgments which are not currently dischargeable;




          (h) Liens created by or resulting from any litigation or other proceedings being contested by
the Company or a Subsidiary, including Liens arising out of judgments or awards against the Company
or any Subsidiary with respect to which the Company or such Subsidiary is prosecuting an appeal or
proceedings for review or for which the time to make an appeal has not yet expired; or final
unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens
Incurred by the Company or any Subsidiary for the purpose of obtaining a stay or discharge in the
course of any litigation or other proceeding to which the Company or such Subsidiary is a party;




18









 





          (i) Liens
to secure obligations under the Senior Credit Facility;



          (j) Liens or deposits to secure the performance of statutory or regulatory obligations, or
surety, appeal, indemnity or performance bonds, warranty and contractual requirements or other
obligations of a like nature incurred in the ordinary course of business; easements, rights of way,
zoning and similar restrictions, reservations, restrictions or encumbrances in respect of real
property (or leases or subleases of real property) or title defects that were not incurred in
connection with Indebtedness and that do not in the aggregate materially adversely affect the value
of said properties (as such properties are used by the Company or its Subsidiaries) or materially
impair their use in the operation of the business of the Company and its Subsidiaries; licenses of
patents, trademarks and other intellectual property rights granted in the ordinary course of
business;




          (k) Liens arising out of conditional sale, retention, consignment or similar arrangements,
Incurred in the ordinary course of business, for the sale of goods;




          (l) Liens on Property of any Foreign Subsidiary;




          (m) Liens existing on the date hereof not otherwise described in clauses (a) through (l)
above;




          (n) Liens not otherwise described in clauses (a) through (m) above on the Property of any
Subsidiary that is not a Subsidiary Guarantor;




          (o) Liens not otherwise permitted by clauses (a) through (n) securing Debt or other
obligations permitted under the Indenture at any time outstanding not to exceed 5% of the
Consolidated Net Tangible Assets of the Company, determined based on the consolidated balance sheet
of the Company as of the end of the most recent fiscal quarter for which financial statements have
been filed or furnished; and




          (p) Liens to secure any Refinancing (or successive Refinancings), in whole or in part, of any
Debt secured by Liens referred to in the foregoing clauses (a) to (o) so long as such Liens do not
extend to any other Property and the Debt so secured is not increased.




     SECTION 4.04 Limitation on Sale and Leaseback Transactions. The Company will not, and
will not permit any Significant Subsidiary, to enter into any Sale
and Leaseback Transaction unless the Company or such Significant
Subsidiary
would be entitled to Incur a Lien to secure Debt in an amount equal to the Attributable Value of
the Sale and Leaseback Transaction in accordance with Section 4.03, without equally and ratably
securing the Securities or the applicable Subsidiary Guarantee.



     SECTION 4.05 Compliance Certificates. The Company shall deliver to the Trustee on or
before a date not more than 120 days after the end of each fiscal year of the Company ending after
the date hereof, a certificate (which need not comply with Section 14.04) signed by the Company’s
chief financial officer, principal executive officer, principal accounting officer, senior vice
president of finance or treasurer stating whether or not the signers have knowledge of any Default
or Event of Default. If the Officer of the Company signing such certificate has knowledge of such a
Default or Event of Default, the certificate shall describe any such Default or Event of Default
and the nature and status thereof.



19









 





     SECTION 4.06 Waiver of Certain Covenants. The Company may omit in any particular
instance to comply with any term, provision or condition set forth in Section 4.03 or Section 4.04
with respect to the Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the outstanding Securities of such series shall either
waive such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition, except
to the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.



     SECTION 4.07 Reports.



          (a) So long as any Securities are outstanding, whether or not the Issuer is then subject to
Section 13(a) or 15(d) of the Exchange Act, the Issuer shall electronically file with the
Commission, the annual reports, quarterly reports and other periodic reports that the Issuer would
be required to file with the Commission pursuant to Section 13(a) or 15(d) if the Issuer was so
subject, and such documents shall be filed with the Commission on or prior to the respective dates
(the “Required Filing Dates”) by which the Issuer would be required so to file such documents if
the Issuer was so subject, unless, in any case, if such filings are not then permitted by the
Commission.




          (b) If such filings with the Commission are not then permitted by the Commission, or such
filings are not generally available on the Internet free of charge, the Issuer shall, within 15
days of each Required Filing Date, transmit by mail to Holders of the Securities, as their names
and addresses appear in the Security Register, without cost to such Holders, and file with the
Trustee copies of the annual reports, quarterly reports and other periodic reports that the Issuers
would be required to file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act if the Issuers were subject to such Section 13(a) or 15(d), and promptly upon written request,
supply copies of such documents to any prospective holder or beneficial owner at the Issuers’ cost.
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 Issuers’
compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).




ARTICLE
FIVE




SUCCESSOR CORPORATION




     SECTION 5.01 When Company May Merge, Etc. So long as the Securities of any series
shall have been issued and remain outstanding, the Company shall not consolidate with or merge into
any other Person or sell, convey, transfer or lease or otherwise dispose of all or substantially
all of its assets to any Person unless:



          (a) either (i) the Company shall be the continuing or surviving Person or (ii) the Person
formed by such consolidation or into which the Company is merged, or the Person which acquires by
conveyance, transfer or otherwise, or which leases, all or substantially all of




20









 




the assets of the Company shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, the due and punctual payment of the principal of and
interest on the Securities of each series and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed; and




          (b) immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing.




     SECTION 5.02 Successor Substituted. Upon any such consolidation or merger, or any
sale, conveyance, transfer, lease or other disposition of all or substantially all of the assets of
the Company in accordance with Section 5.01, the successor Person formed by such consolidation or
into which the Company is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, 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 and, thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture and the Securities.



ARTICLE
SIX




DEFAULT AND REMEDIES




     SECTION 6.01 Events of Default.



   Each of the following constitutes an “Event of Default” with respect to the Securities of a
series:




          (i) failure to make the payment of any interest on the Securities of such series when
the same becomes due and payable, and such failure continues for a period of 30 days;




          (ii) failure to make the payment of any principal of any of the Securities of such
series when the same becomes due and payable at its Stated Maturity;



          (iii)
failure to deposit any sinking fund payment, when due, with respect
to the Securities of such series;



          (iv) failure to comply with any other covenant or agreement in the Securities of such
series or in this Indenture (other than a failure that is the subject of the foregoing
clauses (i), (ii) and (iii)) and such failure continues for 60 days after written notice is given
to the Company as provided below;




          (v) the occurrence of a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any Debt by the
Company or any of its Subsidiaries (or any Debt guaranteed by the Company or any of its
Subsidiaries if the Company or a Subsidiary does not perform its payment obligations under
such guarantee within any grace period provided for in the documentation governing such
guarantee), whether such Debt or guarantee exists on the date hereof or is thereafter
created, which default (a) constitutes a Payment Default or (b) results in the acceleration
of such Debt prior to its Stated Maturity, and in each case, the principal amount of any
such Debt, together with the principal amount of



21









 






any other such Debt under which there has been a Payment Default or that has been so
accelerated, aggregates $50 million or more;




          (vi) one or more judgments or orders that exceed $50 million in the aggregate (net of
amounts covered by insurance or bonded) for the payment of money have been entered by a
court or courts of competent jurisdiction against the Company or any Subsidiary and such
judgment or judgments have not been satisfied, stayed, annulled or rescinded within 30 days
of being entered;




          (vii) the Company or any Significant Subsidiary pursuant to or within the meaning of
Title 11 of the United States Bankruptcy Code:




               (A) commences a voluntary insolvency proceeding;




               (B) consents to the entry of an order for relief against it in an involuntary
insolvency proceeding;




               (C) consents to the appointment of a Custodian of it or for any substantial
part of its Property; or




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




               (E) or takes any comparable action under any foreign laws relating to
insolvency;




provided, however, that the liquidation of any Significant Subsidiary into the
Company other than as part of a credit reorganization, shall not constitute an Event
of Default under this clause (vii);




          (viii) a court of competent jurisdiction enters an order or decree under Title 11 of the
United States Bankruptcy Code that:




               (A) is for relief against the Company or any Significant Subsidiary or for any
substantial part of its Property;




               (B) appoints a Custodian of the Company or any Significant Subsidiary or for
any substantial part of its Property;




               (C) orders the winding up or liquidation of the Company or any Significant
Subsidiary; or




               (D) grants any similar relief under any foreign laws;




and in each such case the order or decree remains unstayed and in effect for 90 days;




          (ix) any Subsidiary Guarantee by a Significant Subsidiary of the Securities ceases to
be in full force and effect (other than in accordance with the terms of



22









 






such Subsidiary Guarantee) or any such Significant Subsidiary denies or disaffirms its
obligations under its Subsidiary Guarantee; or




          (x) any other Event of Default provided with respect to the Securities of such series.



     A
Default under clauses (iv) and (v) is not an Event of Default until the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of any series then
outstanding notify the Company of the Default and the Company does not cure such Default within 90
days after receipt of such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a “Notice of Default.”



     SECTION 6.02 Acceleration. If an Event of Default with respect to the Securities of
any series (other than those of the type described in
Section 6.01(vii) or (viii) with respect to the
Company) shall have occurred and be continuing, the Trustee may, or at the direction of the Holders
of at least 25% in aggregate principal amount of Securities of any series then outstanding shall,
declare to be immediately due and payable the principal amount of all the Securities of such series
then outstanding, together with all accrued and unpaid interest, and premium, if any, by notice in
writing to the Company and the Trustee specifying the respective Event of Default and that such
notice is a notice of acceleration (the “Acceleration Notice”), and the same shall become
immediately due and payable.



     In
case of an Event of Default specified in Section (vii) or (viii) of Section 6.01 hereof with
respect to the Company, such amount with respect to all the Securities of any series will become
due and payable immediately without any declaration or other act on the part of the Trustee or the
Holders of the Securities of such series. Holders may not enforce this Indenture or the Securities
except as provided in this Indenture.



   At any time after a declaration of acceleration with respect to the Securities, but before a
judgment or decree based on acceleration is obtained by the Trustee, the Holders of a majority in
principal amount of the Securities of any series then outstanding (by notice to the Trustee) may
rescind and annul that declaration and its consequences if:



          (a) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction;




          (b) all existing Defaults and Events of Default have been cured or waived except nonpayment of
principal of or interest on the Securities that has become due solely by such declaration of
acceleration;




          (c) to the extent the payment of such interest is lawful, interest (at the same rate specified
in the Securities) on overdue installments of interest and overdue payments of principal which has
become due otherwise than by such declaration of acceleration has been paid;




          (d) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee
for its reasonable expenses, disbursements and advances; and




23









 





          (e) in the event of the cure or waiver of an Event of Default of the type described in Section
6.01(vii) or (viii), the Trustee has received an Officer’s Certificate and Opinion of Counsel that
such Event of Default has been cured or waived.




     For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



     SECTION 6.03 Other Remedies. If an Event of Default occurs and is continuing with
respect to the Securities of any series, the Trustee for the Securities of such series may, and at
the direction of the Holders of at least a majority in principal amount of the outstanding
Securities of such series shall, pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities of the
affected series or does not produce any of them in the proceeding.



     SECTION 6.04 Waiver of Past Defaults. Subject to Sections 6.02, 6.08 and 9.02, the
Holders of at least a majority in principal amount of the outstanding Securities of any series may
waive any past or existing Default or Event of Default with respect to the Securities of such
series and its consequences, except an uncured Default in the payment of principal of or interest
on any Security of such series as specified in clause (i) or (ii) of Section 6.01 or in respect of
a covenant or provision of this Indenture which cannot be modified or amended without the consent
of the Holder of each outstanding Security affected. Upon any such waiver, such Default shall cease
to exist and be deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereto.



     SECTION 6.05 Control by Majority. The Holders of at least a majority in principal
amount of the outstanding Securities of each series affected may direct the time, method and place
of conducting any proceeding for any remedy available to, or exercising any trust or power
conferred on, the Trustee for the Securities of such series; provided, that the Trustee may refuse
to follow any direction if the Trustee, being advised by counsel, determines that the actions or
proceedings so directed may not lawfully be taken or if the Trustee in good faith by its board of
directors or executive committee or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the actions or proceedings so directed would involve the Trustee in
personal liability; and provided, further, that the Trustee may take any other action it deems
proper that is not inconsistent with any such direction received from Holders of Securities.



24









 





     SECTION 6.06 Payment of Securities on Default. The Company covenants that if an Event
of Default in payment of principal or interest specified in clause (a) or (b) of Section 6.01
occurs and is continuing with respect to the Securities of any series, then upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the Holders, the whole amount of
principal and accrued interest that then shall have become due and payable on all of the Securities
of such series, together with interest upon the overdue principal and (to the extent that payment
of such interest is enforceable under applicable law) upon overdue installments of interest, if
any, at the same rate as the rate of interest specified in the Securities of such series; and, in
addition thereto, such further amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents and counsel, and all other reasonable expenses and liabilities incurred,
and all advances made, by the Trustee, except as a result of its negligence or bad faith.



     SECTION 6.07 Limitation on Suits. A Holder may not institute any proceeding, judicial
or otherwise, with respect to this Indenture or the Securities of any series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:



          (a) the Holder has previously given the Trustee for the Securities of such series written
notice of a continuing Event of Default with respect to the Securities of such series;




          (b) the Holders of at least 25% in principal amount of the outstanding Securities of such
series shall have made a written request to the Trustee for the Securities of such series to pursue
such remedy;




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




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




          (e) during such 60-day period, the Holders of a majority in principal amount of the
outstanding Securities of such series do not give the Trustee a direction that is inconsistent with
the request.




     For purposes of Section 6.05 and this Section 6.07, the Trustee shall comply with TIA Section
316(a) in making any determination of whether the Holders of the required principal amount of
outstanding Securities of any series have concurred in any request or direction of the Trustee to
pursue any remedy available to the Trustee or the Holders with respect to this Indenture or the
Securities or otherwise under the law.



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



     SECTION 6.08 Rights of Holders to Receive Payment. Notwithstanding any other provision
of this Indenture, the right of any Holder of a Security of any series to receive payment of the
principal of or interest on such Security or to bring suit for the enforcement of any such



25









 




payment, on or after the due date expressed in such Security, shall not be impaired or
affected without the consent of such Holder.




     SECTION 6.09 Collection Suit by Trustee. If an Event of Default in payment of
principal or interest specified in clause (i) or (ii) of Section 6.01 occurs and is continuing with
respect to the Securities of any series, the Trustee for the Securities of such series may recover
judgment in its own name and as trustee of an express trust against the Company or any other
obligor of the Securities of such series for the whole amount of principal and accrued interest
remaining unpaid, together with interest on overdue principal, 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, except as a result of
its negligence or bad faith.



     SECTION 6.10 Trustee May File Proofs of Claim. The Trustee for the Securities of any
series may 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 any other amounts
due the Trustee under Section 7.07) and the Holders of Securities of such series allowed in any
judicial proceedings relative to the Company (or any other obligor of the Securities of such
series), its creditors or its property and shall be entitled and empowered to collect and receive
any monies, securities or other property payable or deliverable upon conversion or exchange of the
Securities of such series or upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official 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. Nothing herein contained shall be deemed to empower the Trustee to authorize or
consent to, or accept or adopt on behalf of any Holder of Securities of any series, any plan of
reorganization, arrangement, adjustment or composition affecting the Securities of such series or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.



     SECTION 6.11 Priorities. If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:



        First: To the payment of all reasonable costs and expenses applicable to such collection,
reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;



        Second: To Holders for amounts then due and unpaid for principal of and interest on the
Securities in respect of which or for the benefit of which such money has been collected, with
interest upon the overdue installments of interest, to the extent lawful, at the same rate as the
rate of interest on the Securities of such series, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities of such series for principal and
interest, respectively; and



26









 





        Third: To the Company or as a court of competent jurisdiction shall direct in a final,
non-appealable order.



        The Trustee, upon prior written notice to the Company, may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.11.



     SECTION 6.12 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 the Securities of any series for
any action taken or omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in the suit having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by the Company, a suit by the Trustee for the Securities of
any series, a suit by a Holder pursuant to Section 6.08, or a suit by Holders of more than 10% in
principal amount of the outstanding Securities of any series.



     SECTION 6.13 Restoration of Rights and Remedies. If the Trustee for the Securities of
any series 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 proceeding, the Company, each of the Subsidiary Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, each of the Subsidiary Guarantors, the Trustee
and the Holders shall continue as though no such proceeding had been instituted.



     SECTION 6.14 Rights and Remedies Cumulative. No right or remedy herein conferred upon
or reserved to the Trustee for the Securities of any series 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 6.15 Delay or Omission Not Waiver. No delay or omission of the Trustee for the
Securities of any series or of any Holder of Securities of any series to exercise any right or
remedy accruing upon any Event of Default occurring and continuing with respect to the Securities
of such series 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 Six or by law to
the Trustee for the Securities of any series or to the Holders of Securities of any series 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.



ARTICLE
SEVEN




TRUSTEE




27









 





     SECTION 7.01 General. The duties and responsibilities of the Trustee shall be as
provided by the TIA and as set forth herein. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability 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 adequate indemnity against such risk or liability is not reasonably assured to it. Whether
or not herein expressly so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the
provisions of this Article Seven.



     SECTION 7.02 Certain Rights of Trustee. Subject to TIA Sections 315(a) through (d):



          (a) the Trustee may conclusively rely, and shall be fully protected in acting or refraining
from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the proper
Person;




          (b) before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
or an Opinion of Counsel, which shall conform to Section 14.04. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such certificate or opinion;




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




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




          (e) 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 its rights or powers, provided, that the Trustee’s
conduct does not constitute negligence or bad faith;




          (f) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officer’s Certificate;




          (g) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or 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





28









 







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 expense of the
Company and shall incur no liability of any kind by reason of such inquiry or investigation;



          (h) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon;




          (i) the Trustee for the Securities of any series shall not be deemed to have notice of any
Default or Event of Default with respect to the Securities of such series 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 Securities of such series and this Indenture;




          (j) 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;




          (k) the Trustee may request that the Company deliver an Officer’s Certificate setting forth
the names of individuals and/or titles of Officers authorized at such time to take specified
actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person
authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded; and




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




     SECTION 7.03 Individual Rights of Trustee. The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to TIA Sections 310(b) and 311.



     SECTION 7.04 Trustee’s Disclaimer. The Trustee (i) makes no representation as to the
validity or adequacy of this Indenture or the Securities, (ii) shall not be accountable for the
Company’s use or application of the proceeds from the Securities and (iii) shall not be responsible
for any statement in any Security other than its certificate of authentication.



     SECTION 7.05 Notice of Default. If any Default or any Event of Default occurs and is
continuing with respect to the Securities of any series and if such Default or Event of Default is
known to a Responsible Officer of the Trustee for the Securities of such series, the Trustee shall
mail to each Holder in the manner and to the extent provided in TIA Section 313(c) notice of the
Default or Event of Default within 90 days after it occurs, unless such Default or Event of Default
has been cured; provided, however, that, except in the case of a default in the



29









 





payment of the principal of or interest on any Security of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the Holders of the
Securities of such series.



     SECTION 7.06 Reports by Trustee to Holders. Within 60 days after each May 15,
beginning with the May 15 following the date of the issuance of Securities of any series under this
Indenture, the Trustee shall mail to each Holder as provided in TIA Section 313(c) a brief report,
if and as required by TIA Section 313(a), dated as of such May 15.



     A copy of each report at the time of its mailing to the Holders of Securities shall be mailed
to the Company and filed with the Commission and each stock exchange on which the Securities of any
series are listed in accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee when the Securities of any series are listed on any stock exchange or of any delisting
thereof.



     SECTION 7.07 Compensation and Indemnity. The Company shall pay to the Trustee for the
Securities of each series such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee for the Securities of each
series upon request for all reasonable disbursements, expenses and advances incurred or made by the
Trustee without negligence or bad faith on its part. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents and counsel.



     The Company shall indemnify the Trustee for the Securities of each series and any predecessor
trustee for, and hold it harmless against, any and all loss, claim, damage or liability or expense
incurred by it without negligence, willful misconduct or bad faith on its part in connection with
the acceptance or administration of this Indenture and its duties under this Indenture and the
Securities of such series, including the costs and expenses of defending itself against any claim
or liability and of complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under this Indenture and the
Securities of such series. The Trustee shall notify the Company promptly of any claim of which a
Responsible Officer receives written notice for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations hereunder, unless the
Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee shall
cooperate in the defense. Unless otherwise set forth herein, the Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be unreasonably withheld.



     To secure the Company’s payment obligations in this Section 7.07, the Trustee for the
Securities of each series shall have a lien prior to the Securities of such series on all money or
property held or collected by the Trustee, in its capacity as Trustee, except money or property
held in trust to pay principal of and interest on particular Securities.



     If the Trustee for the Securities of any series incurs expenses or renders services after



30









 





the
occurrence of an Event of Default specified in clause (vii) or
(viii) of Section 6.01, the
expenses and the compensation for the services will be intended to constitute expenses of
administration under Title 11 of the United States Bankruptcy Code or any applicable federal or
state law for the relief of debtors.



     The provisions of this Section 7.07 shall survive the termination of this Indenture and the
resignation and removal of the Trustee.



     The Trustee shall comply with the provisions of TIA 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 for the Securities of any series may resign at any time by so notifying the
Company in writing at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the outstanding Securities of any series may at any time remove the
Trustee for the Securities of such series by so notifying the Trustee and may appoint a successor
Trustee. The Company may remove the Trustee for the Securities of any series if: (i) the Trustee is
no longer eligible under Section 7.10; (ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the Trustee or its property; or (iv) the
Trustee becomes incapable of acting.



     If the Trustee for the Securities of any series 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 outstanding Securities of such series may appoint a successor Trustee to replace the
successor Trustee appointed by the Company. If the successor Trustee does not deliver its written
acceptance required by the next succeeding paragraph of this Section 7.08 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a
majority in principal amount of the outstanding Securities of such series may, at the expense of
the Company, petition any court of competent jurisdiction for 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. Immediately after the delivery of such written acceptance, subject to
the lien provided in Section 7.07, (i) the retiring Trustee shall upon payment of its charges
transfer all property held by it as Trustee to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder of Securities of the affected series. No successor
Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article Seven.



     If the Trustee for the Securities of any series is no longer eligible under Section 7.10 or
shall fail to comply with TIA Section 310(b), any Holder of Securities of such series who



31









 





satisfies the requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. If at any
time the Trustee for the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section 7.08, the Trustee shall resign immediately in the manner and with the
effect provided in this Section 7.08.



     The Company shall give notice of any resignation and any removal of the Trustee for the
Securities of any series and each appointment of a successor Trustee to all Holders of Securities
of such series. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.



     Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligation under Section 7.07 shall continue for the benefit of the retiring Trustee.



     SECTION 7.09 Successor Trustee by Merger, Etc. If the Trustee for the Securities of
any series consolidates with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking association, the resulting,
surviving or transferee corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein, provided, that such corporation shall be otherwise qualified and eligible under
this Article Seven.



     SECTION 7.10 Eligibility. This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and Section 310(a)(5). The Trustee shall have a combined
capital and surplus of at least $50 million as set forth in its most recent published annual report
of condition that is subject to the requirements of applicable federal or state supervising or
examining authority. If at any time the Trustee for the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section 7.10, the Trustee shall resign
immediately in the manner and with the effect specified in this Article Seven.



     SECTION 7.11 Money Held in Trust. The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by law and except for
money held in trust under Article Eight.



ARTICLE
EIGHT




SATISFACTION AND DISCHARGE OF INDENTURE




     SECTION 8.01 Satisfaction and Discharge of Securities of Any Series; Discharge of
Indenture.



          (a) Except
as to surviving rights of registration of transfer or exchange of any
outstanding Securities, the Company may terminate its
obligations under the outstanding Securities of any series and this Indenture with respect to the
Securities of such series if:




32









 






          (i) all outstanding Securities of such series previously authenticated and delivered
(other than destroyed, lost or stolen Securities that have been replaced or Securities that
are paid pursuant to Section 4.01 or Securities for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as provided in Section
8.05) have been delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder; or




          (ii) (A) the Securities of such series mature within one year, (B) the Securities of
such series are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, (C) the Company irrevocably deposits
in trust with the Trustee during such one-year period, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for
the benefit of the Holders of Securities of such series for that purpose, money or
Government Obligations sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of any interest thereon, to pay
principal and interest on the Securities of such series to maturity, and to pay all other
sums payable by it hereunder, (D) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the date of such deposit,
(E) such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the Company is a party or by
which it is bound and (F) the Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent provided for
herein relating to the satisfaction and discharge of the outstanding Securities of such
series and this Indenture with respect to the Securities of such series have been complied
with.




          (b) Upon compliance by the Company with the provisions of clause (a) of this Section 8.01 as
to the satisfaction and discharge of each series of Securities issued hereunder, and if the Company
has paid or caused to be paid all other sums payable under this Indenture, this Indenture shall
cease to be of any further effect (except as otherwise provided herein). The Trustee upon request
shall acknowledge in writing the satisfaction and discharge of this Indenture.




     SECTION 8.02 Legal Defeasance. Except as otherwise provided for the Securities of any
series, the Company will be deemed to have paid and will be discharged from any and all obligations
in respect of the Securities of any series, and the provisions of this Indenture will no longer



33









 





be in effect with respect to the Securities of such series, and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same if:



          (a) the Company has irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.10) and conveyed all right,
title and interest to the Trustee for the benefit of the Holders of Securities of such series,
under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee
as trust funds in trust, specifically pledged to the Trustee for the benefit of such Holders as
security for payment of the principal of and interest, if any, on the Securities of such series,
and dedicated solely to, the benefit of such Holders, in and to (1) money in an amount, (2)
Government Obligations that, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide, not later than one day before the due date of any
payment referred to in this clause (a), money in an amount or (3) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable by the Trustee, the
principal of and interest on the outstanding Securities of such series on the Stated Maturity of
such principal or interest; provided, that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such Government Obligations to the payment of such principal
and interest with respect to the Securities of such series;




          (b) the Company has delivered to the Trustee either (x) an Opinion of Counsel to the effect
that Holders of Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of the Company’s exercise of its option under this Section 8.02 and
will be subject to federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised, which Opinion of Counsel
shall be based upon (and accompanied by a copy of) a ruling of the Internal Revenue Service to the
same effect unless there has been a change in applicable federal income tax law after the Issue
Date of such Securities such that a ruling is no longer required or (y) a ruling directed to the
Trustee received from the Internal Revenue Service to the same effect as the aforementioned Opinion
of Counsel;




          (c) immediately after giving effect to such deposit, on a pro forma basis, no Default or Event
of Default with respect to the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 6.01(e) and 6.01(f) are concerned, at any time
during the period ending on the 91st day after such date of such deposit; and




          (d) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02 have been complied with.




     The
Company will be deemed to have paid and will be discharged from any
and all obligations in respect of the Securities of any series, and
the provisions of this Indenture will no longer be in effect with respect to the
Securities of such series on the date the conditions set forth above
under (a), (b), (c) and (d) are satisfied. The Company’s obligations in Sections 2.02, 2.03, 3.03, 3.07,



34









 





8.04, 8.05, 8.06 and the rights, powers, trusts, duties and immunities of the Trustee
hereunder shall survive such satisfaction and discharge until the Securities of such series are no
longer outstanding.



     After
the satisfaction of the conditions in (a), (b), (c) and (d) above, the Trustee upon request shall acknowledge in writing the
discharge of the Company’s obligations under the Securities of such series and this Indenture with
respect to the Securities of such series except for those surviving obligations in the immediately
preceding paragraph.



     SECTION 8.03 Defeasance of Certain Obligations. Except as otherwise provided for the
Securities of any series, the Company may omit to comply with any term, provision or condition set
forth in Sections 4.03, 4.04, 4.05 and 5.01 and clause (iv) of Section 6.01 and a breach with
respect to Sections 4.03, 4.04, 4.05 and 5.01, and clause (iv) of Section 6.01 shall be deemed not
to be an Event of Default, in each case with respect to the outstanding Securities of any series
if:




          (i) with reference to this Section 8.03, the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10) and conveyed all right, title and interest to the Trustee for
the benefit of the Holders of Securities of such series, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of such Holders as security for payment
of the principal of and interest, if any, on the Securities of such series, and dedicated
solely to, the benefit of such Holders, in and to (A) money in an amount, (B) Government
Obligations that, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide, not later than one day before the due date of any
payment referred to in this clause (i), money in an amount or (C) a combination thereof in
an amount sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, without consideration of the reinvestment of such interest and after payment
of all federal, state and local taxes or other charges and assessments in respect thereof
payable by the Trustee, the principal of and interest on the outstanding Securities of such
series on the Stated Maturity of such principal or interest; provided, that the Trustee
shall have been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to the payment of such principal and interest with respect to the
Securities of such series;




          (ii) the Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of such covenants and Events
of Default and will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and defeasance had
not occurred;




          (iii) immediately after giving effect to such deposit on a pro forma basis, no Default
or Event of Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit or, insofar as Sections



35









 






6.01(e) and 6.01(f) are concerned, at any time during the period ending on the 91st day
after such date of such deposit;




          (iv) if the Securities of such series are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Securities of such series will not be delisted as a result of such deposit, defeasance
and discharge; and




          (v) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to
the defeasance contemplated by this Section 8.03 have been complied with.



     SECTION 8.04 Application of Trust Money. Subject to Section 8.06, the Trustee or
Paying Agent shall hold in trust money or Government Obligations deposited with it pursuant to
Section 8.01, 8.02 or 8.03, as the case may be, and shall apply the deposited money and the money
from Government Obligations in accordance with the Securities of the applicable series and this
Indenture to the payment of principal of and interest on the Securities of such series; but such
money need not be segregated from other funds except to the extent required by law.



     SECTION 8.05 Repayment to Company. Subject to Sections 7.08, 8.01, 8.02 and 8.03, the
Trustee and the Paying Agent shall promptly pay to the Company upon request set forth in an
Officer’s Certificate any excess money held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them with respect to the Securities of any series for the
payment of principal or interest that remains unclaimed for two years; provided, that the Trustee
or Paying Agent before being required to make any payment may cause to be published at the expense
of the Company once in a newspaper of general circulation in The City of New York or mail to each
Holder of Securities of such series entitled to such money at such Holder’s address (as set forth
in the Security Register) notice that such money remains unclaimed and that after a date specified
therein (which shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company. After payment to the
Company, Holders of Securities of such series entitled to such money must look to the Company or
the Subsidiary Guarantors, as the case may be, for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and such Paying Agent
with respect to such money shall cease.



     SECTION 8.06 Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be,
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 obligations under this Indenture and the Securities of the applicable series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as
the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such
money or Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be;
provided, that, if the Company has made any payment of principal of or interest on any



36









 





Securities of such series because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such payment from the
money or Government Obligations held by the Trustee or Paying Agent.



ARTICLE
NINE




AMENDMENTS, SUPPLEMENTS AND WAIVERS




     SECTION 9.01 Without Consent of Holders. The Company, when authorized by a resolution
of its Board of Directors (as evidenced by a Board Resolution delivered to the Trustee), each of
the Subsidiary Guarantors and the Trustee may amend or supplement this Indenture or the Securities
without notice to or the consent of any Holder:




          (i) to cure any ambiguity, defect or inconsistency in this Indenture;




          (ii) to comply with Article Five;




          (iii) to comply with any requirements of the Commission in connection with any
qualification of this Indenture under the TIA;




          (iv) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee;




          (v) to provide for uncertificated Securities in addition to or in place of certificated
Securities;




          (vi) to add to the covenants of the Company for the protection of the Holders of
Securities of any series, to add any additional Events of Default with respect to the
Securities of any series, or to surrender any right or power conferred upon the Company;




          (vii) to convey, transfer, assign, mortgage or pledge to the Trustee as security for
the Securities of one or more series any property or assets;




          (viii) to allow any Subsidiary Guarantor to execute a supplemental indenture in respect
of a Subsidiary Guarantee;




          (ix) to establish the forms or terms of Securities of any series as permitted by
Sections 2.01 and 3.01; or




          (x) to make any change that, in the good faith opinion of the Board of Directors of the
Company, as evidenced by a Board Resolution, does not materially and adversely affect the
rights of any Holder.



     SECTION 9.02 With Consent of Holders. Subject to Sections 6.04 and 6.08 and without
prior notice to the Holders, the Company, when authorized by its Board of Directors (as evidenced
by a Board Resolution delivered to the Trustee), each of the Subsidiary Guarantors and the Trustee
may amend this Indenture and the Securities of any series with the written



37









 





consent of the Holders of a majority in principal amount of the Securities of each affected
series then outstanding (voting as one class), and the Holders of a majority in principal amount of
the Securities of each affected series then outstanding (voting as one class) by written notice to
the Trustee may waive future compliance by the Company with any provision of this Indenture or the
Securities of such series.



     Notwithstanding the provisions of this Section 9.02, without the consent of each Holder
affected, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:




          (i) extend the Stated Maturity of the principal of, or any installment of principal or
interest on, any Security;




          (ii) reduce the principal amount of or rate of interest on any Security, or any amount
payable upon redemption thereof, except as provided in this Indenture or the Securities of
the applicable series;




          (iii) reduce the amount of the principal of an Original Issue Discount Security that
would be payable upon an acceleration of the maturity thereof pursuant to Section 6.02;




          (iv) change any place or currency of payment of principal of or interest on any
Security;




          (v) impair the right to institute suit for the enforcement of any payment on or after
the Stated Maturity on any Security;




          (vi) reduce the percentage or principal amount of outstanding Securities of any series
the consent of whose Holders is necessary to modify or amend this Indenture or to waive
compliance with certain provisions of or certain Defaults under this Indenture;




          (vii) waive an uncured default in the payment of principal of or interest on any
Security; or




          (viii) modify any of the provisions of this Section 9.02, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each outstanding Security affected thereby.



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



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. 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 supplemental indenture or waiver.



38









 





     SECTION 9.03 Action by Holders; Record Dates. Whenever in this Indenture it is
provided that the Holders of a specified principal amount of the outstanding Securities of any
series may take any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at the time of taking
any such action the Holders of such specified amount have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by such Holders in person or
by agent or proxy appointed in writing, or (b) the record of the Holders voting in favor thereof at
any meeting of the Holders duly called and held in accordance with the provisions of Article Ten,
or (c) any combination of such instrument or instruments and any such record of such a meeting of
the Holders.



     Subject to the provisions of Sections 7.02 and 10.05, proof of the execution of any instrument
by a Holder or its agent or proxy shall be sufficient if the ownership of the Securities shall be
proved by (a) the Security Register or by a certificate of the Registrar; or (b) in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.



     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 first paragraph of this Section 9.03, those Persons who
were Holders at such record date (or their duly designated proxies) and only those 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 90 days after such record date.



     After an amendment, supplement or waiver becomes effective, it shall bind every Holder of
Securities of the affected series unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the second paragraph of
Section 9.02, the amendment or waiver shall bind each Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the Security of the
consenting Holder.



     SECTION 9.04 Revocation and Effect of Consent. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion
of its Security. Such revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective on receipt by the Trustee of written consents from the
Holders of the requisite percentage in principal amount of the outstanding Securities of the
affected series.



     SECTION 9.05 Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of a Security of any series, the Trustee may require the Holder to deliver
such Security to the Trustee. At the Company’s expense, the Trustee may place an appropriate
notation on such Security about the changed terms and return it to the Holder, and



39









 





the Trustee may place an appropriate notation on any Security of such series thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange
for such Security shall issue and the Trustee shall authenticate a new Security of such series that
reflects the changed terms. Failure to make the appropriate notation, or issue a new Security,
shall not affect the validity and effect of such amendment, supplement or waiver.



     SECTION 9.06 Trustee to Sign Amendments, Etc. The Trustee shall be provided with, and
shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or permitted
by this Indenture and that it will be valid and binding upon the Company. Subject to the preceding
sentence, the Trustee shall sign such amendment, supplement or waiver if the same does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     SECTION 9.07 Effect of Supplemental Indenture. Every supplemental indenture executed
pursuant to this Article Nine shall conform to the requirements of the TIA as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall
be deemed modified and amended in accordance therewith, and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the
Subsidiary Guarantors and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all of the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.



ARTICLE
TEN




MEETINGS OF HOLDERS




     SECTION 10.01 Purposes of Meetings. A meeting of the Holders of Securities of any
series may be called at any time and from time to time pursuant to the provisions of this Article
Ten for any of the following purposes:




          (i) to give any notice to the Company or to the Trustee for the Securities of such
series, or to give any directions to the Trustee for the Securities of such series, or to
waive any Default or Event of Default with respect to the Securities of such series
hereunder and its consequences, or to take any other action authorized to be taken by the
Holders of Securities of such series pursuant to any of the provisions of Article Six;




          (ii) to remove the Trustee for the Securities of such series and appoint a successor
trustee pursuant to the provisions of Article Seven;



40









 






          (iii) to consent to any amendment, supplement or waiver pursuant to the provisions of
Section 9.02; or




          (iv) to take any other action authorized to be taken by or on behalf of the Holders of
any specified principal amount of the outstanding Securities of such series under any other
provision of this Indenture or under applicable law.



     SECTION 10.02 Call of Meetings by Trustee. The Trustee for the Securities of any
series may at any time call a meeting of the Holders of Securities of such series to take any
action specified in Section 10.01, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the
Holders of Securities of any series, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given (a) to all Holders of
Securities of such series then outstanding, by publication at least twice in an Authorized
Newspaper in the Borough of Manhattan, The City of New York prior to the date fixed for the
meeting, the first publication, in each case, to be not less than 20 nor more than 180 days prior
to the date fixed for the meeting and the last publication to be not more than five days prior to
the date fixed for the meeting and (b) to all Holders of Securities of such series then outstanding
who have filed their names and addresses with the Trustee, by mailing such notice to such Holders
at such addresses, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
Failure of any Holder or Holders to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of the Holders of Securities
of any series shall be valid without notice if the Holders of all Securities of such series then
outstanding, the Company and the Trustee are present in person or by proxy or shall have waived
notice thereof before or after the meeting.



     SECTION 10.03 Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the
Securities of all or any series then outstanding, as the case may be, shall have requested the
Trustee to call a meeting of the Holders to take any action authorized in Section 10.01, by written
request setting forth in reasonable detail the action proposed to be taken at the meeting, the
Trustee shall not have mailed or published as provided in Section 10.02, the notice of such meeting
within 30 days after receipt of such request, then the Company or the Holders of Securities of such
series in the amount above specified may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action authorized in Section
10.01, by mailing or publishing notice thereof as provided in Section 10.02.



     SECTION 10.04 Qualification for Voting. To be entitled to vote at any meeting of the
Holders a Person shall be a Holder of one or more Securities of the series with respect to which
such meeting is being held or a Person appointed by an instrument in writing as proxy by such
Holder. The only Persons who shall be entitled to be present or to speak at any meeting of the
Holders shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the Company and its
counsel.



41









 





     SECTION 10.05 Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee for the Securities of any series may make such reasonable regulations as it may deem
advisable for any meeting of the Holders of Securities of such series, in regard to proof of the
holding of Securities of such series and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as the Trustee shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by the Holders of Securities of such
series as provided in Section 10.03, in which case the Company or the Holders calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a majority in
principal amount of the Securities represented at the meeting and entitled to vote.



     Subject to the provisions of Section 9.03, at any meeting of the Holders, each Holder or proxy
shall be entitled to one vote for each 1,000 (in the currency or currency unit in which such
Securities are denominated) principal amount at maturity of outstanding Securities held or
represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting
not to be outstanding. The chairman of the meeting shall have no right to vote except as a Holder
or proxy. Any meeting of the Holders duly called pursuant to the provisions of Section 10.02 or
10.03 may be adjourned from time to time, and the meeting may be held as so adjourned without
further notice.



     SECTION 10.06 Voting. The vote upon any resolution submitted to any meeting of the
Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or
proxies and on which shall be inscribed the identifying number or numbers or to which shall be
attached a list of identifying numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified reports in duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of the Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was mailed as provided in
Section 10.02. The record shall be signed and verified by the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the other to the
Trustee for the Securities of the series with respect to which such meeting is being held to be
preserved by the Trustee, the latter to have attached hereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters therein stated.



ARTICLE
ELEVEN




REDEMPTION OF SECURITIES




42









 





     SECTION 11.01 Applicability of Article. The provisions of this Article Eleven shall be
applicable to the Securities of any series that are redeemable before their Stated Maturity, except
as otherwise specified as contemplated by Section 3.01 for the Securities of such series.



     SECTION 11.02 Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Securities shall be evidenced by, or pursuant to, a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Securities of any series, the
Company shall, at least 45 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such redemption date and of the
principal amount of Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer’s Certificate evidencing compliance with such restriction.



     SECTION 11.03 Selection by Trustee of Securities to be Redeemed. If fewer than all of
the Securities of any series are to be redeemed, the Trustee shall select, not more than 75 days
prior to the redemption date and in such manner as in its sole discretion it shall deem appropriate
and fair, the Securities of such series or portions thereof (equal to the minimum authorized
denomination for Securities of such series or any integral multiple thereof, except as otherwise
provided with respect to the Securities of such series) to be redeemed. The Trustee shall promptly
notify the Company in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.



     SECTION 11.04 Notice of Redemption. Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the redemption date,
to each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security
Register. The notice provided in the manner herein specified shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case, failure to give such
notice or any defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.



Each such notice of redemption shall specify:




          (i) the redemption date;




          (ii) the redemption price;




          (iii) if less than all of the outstanding Securities of any series are to be redeemed,
the identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;




          (iv) that on the redemption date the redemption price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;




43










 








     (v) the place or places where such Securities are to be surrendered for payment of
the redemption price;




     (vi) that the redemption is for a sinking fund, if such is the case; and




     (vii) the CUSIP, Common Code and/or ISIN number(s), if any, of the Securities to be
redeemed.


Notice of redemption of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company’s request, by the Trustee in the name and at the expense of the
Company.




     SECTION 11.05 Deposit of Redemption Price. On or prior to any redemption date, the
Company shall deposit with the Trustee or with one or more Paying Agents an amount of money in the
currency or currency unit in which the Securities of such series are payable (except as otherwise
specified as contemplated by Section 3.01 for the Securities of such series) sufficient to redeem
on such redemption date all of the Securities or portions thereof so called for redemption at the
applicable redemption price, together with accrued interest to such redemption date. If the Company
is acting as its own Paying Agent, it will segregate such amount and hold it in trust as provided
in the last sentence of Section 3.05.



     SECTION 11.06 Securities Payable on Redemption Date. If notice of redemption has been
given as above provided, the Securities or portions of Securities of the series specified in such
notice shall become due and payable on the redemption date and at the place or places stated in
such notice at the applicable redemption price, together with any interest accrued to such
redemption date, and on and after said redemption date (unless the Company shall default in the
payment of such Securities at the applicable redemption price, together with any interest accrued
to said redemption date), any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the applicable
redemption price, together with any interest accrued thereon to the applicable redemption date, in
the currency or currency unit in which the Securities of such series are payable (except as
otherwise specified as contemplated by Section 3.01 for the Securities of such series); provided,
however, that installments of interest whose Stated Maturity is on or prior to the redemption date
shall be payable to the Holders of such Securities, or one or more predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms.



     If any Security surrendered for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the redemption date at the rate
prescribed therefor in such Security.



     SECTION 11.07 Securities Redeemed in Part. Upon surrender of any Security which is to
be redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge, a new Security or Securities of such series
of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the
Securities so surrendered.



44









 





ARTICLE
TWELVE




SINKING FUND




     SECTION 12.01 Applicability of Article. The provisions of this Article Twelve shall be
applicable to any sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is hereinafter referred to as a “mandatory sinking fund payment,” and any payment in excess
of such minimum amount provided for by the terms of the Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section
12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.



     SECTION 12.02 Satisfaction of Sinking Fund Payments With Securities. The Company may
(1) deliver Securities of a series (other than any Securities previously called for redemption) and
(2) apply as a credit Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such Securities;
provided, that such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the redemption price specified in such
Securities for redemption through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.



     SECTION 12.03 Redemption of Securities for Sinking Fund. Not less than 60 days prior
to each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for
such series pursuant to the terms of such series, the portion thereof, if any, which is to be
satisfied by payment of cash in the currency or currency unit in which the Securities of such
series are payable (except as otherwise specified as contemplated by Section 3.01 for the
Securities of such series) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of such series pursuant to Section 12.02 and will deliver to the Trustee
any Securities to be so delivered (which have not been previously delivered). Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed
on such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 11.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.



ARTICLE
THIRTEEN




SUBSIDIARY GUARANTEES




45









 








     SECTION 13.01 Guarantee. Subject to this Article Thirteen, each of the Subsidiary
Guarantors hereby agrees, jointly and severally, to unconditionally guarantee to each Holder of a
Security 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 Securities or the
obligations of the Company hereunder or thereunder, that: (a) the principal of, and interest, if
any, on, the Securities will be promptly paid in full when due, whether at Stated Maturity, by
acceleration, redemption, purchase or otherwise, and (b) all other obligations of the Company to
the Holders or the Trustee under the Indenture and the Securities will be fully and punctually
performed within the grace period set forth in Section 6.01(iv), if applicable. Failing payment when
due of any amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each
Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.



     The Subsidiary Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the Securities or this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of
the Securities 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 Subsidiary 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 covenant that this Subsidiary Guarantee
shall not be discharged except by complete performance of the obligations contained in the
Securities and this Indenture.



     If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.



     Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders of Securities in respect of any obligations guaranteed hereby until payment
in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as
between the Subsidiary 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 Six for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall
have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.



46









 





     SECTION 13.02 Limitation on Subsidiary Guarantor Liability. Each Subsidiary Guarantor
and, by its acceptance of Securities, each Holder hereby confirms that it is the intention of all
such parties that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of any federal or state 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 Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such
Subsidiary Guarantor will be limited so that, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Subsidiary 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 Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under this Article Thirteen, will not result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee constituting a fraudulent transfer or
conveyance.



     SECTION 13.03 Execution and Delivery of Subsidiary Guarantee. To evidence its
Subsidiary Guarantee set forth in Section 13.01, each Subsidiary Guarantor hereby agrees that the
Securities shall bear a notation substantially in the form annexed hereto as Exhibit B stating that
such Securities are guaranteed by the Subsidiary Guarantors in accordance with this Article
Thirteen and may be released upon the terms and conditions set forth in this Indenture.



     Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
13.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security
a notation of such Subsidiary Guarantee.



     If an Officer of a Subsidiary Guarantor whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates the Security on which a Subsidiary Guarantee is
endorsed, such Subsidiary Guarantee shall be valid nevertheless.



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantees set forth in this Indenture on behalf of the
Subsidiary Guarantors.



     SECTION 13.04 Subsidiary Guarantors May Consolidate, etc. on Certain Terms. Except as
otherwise provided in Section 13.05, no Subsidiary Guarantor may consolidate with or merge with or
into (unless such Subsidiary Guarantor is the surviving Person) another Person unless:




     (a) subject to Section 13.05, the Person formed by or surviving any such consolidation or
merger (if other than a Subsidiary Guarantor or the Company) unconditionally assumes all of the
obligations of such Subsidiary Guarantor under the Securities and this Indenture, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the Trustee, on the terms
set forth herein or therein; and




     (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing.



47









 





     In case of any such consolidation or merger, and upon the assumption by the successor Person,
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Subsidiary Guarantor, such successor Person shall succeed to and
be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as
a Subsidiary Guarantor and such predecessor Subsidiary Guarantor shall be discharged from its
obligations under the Securities and this Indenture.



     Except as set forth in Articles Four and Five, and notwithstanding clauses (a) and (b) above,
nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or
merger of a Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or shall
prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor.



ARTICLE
FOURTEEN




MISCELLANEOUS




     SECTION 14.01 Trust Indenture Act of 1939. This Indenture shall be subject to the
provisions of the TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.



     SECTION 14.02 Notices. Any notice or communication shall be sufficiently given if in
writing and delivered in person, mailed by first-class mail or sent by telecopier transmission
addressed as follows:


If to the Issuer:



GameStop Corp.

625 Westport Parkway

Grapevine Texas 76051

Attention: Chief Financial Officer

Telecopier No.: (817) 424-2820



If to the Trustee:



[Insert name and information of Trustee]




     The Company or the Trustee by notice to the others may designate additional or different
addresses for subsequent notices or communications.



     Any notice or communication mailed to a Holder shall be mailed to it at its address as it
appears on the Security Register by first-class mail and shall be sufficiently given to such Holder
if so mailed within the time prescribed. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and each Agent at



48









 




the same time.




     Failure to mail a notice or communication to a Holder as provided herein or any defect in any
such notice or communication shall not affect its sufficiency with respect to other Holders. Except
for a notice to the Trustee, which is deemed given only when received, and except as otherwise
provided in this Indenture, if a notice or communication is mailed in the manner provided in this
Section 14.02, it is duly given, whether or not the addressee receives it.



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



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



     SECTION 14.03 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:




     (i) (i) an Officer’s Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and




     (ii) an Opiniwon of Counsel stating that, in the opinion of such Counsel, all such
conditions precedent, if any, have been complied with.



     SECTION 14.04 Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
shall include:




     (i) a statement that each Person signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




     (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is based;



49









 






     (iii) a statement that, in the opinion of each such Person, such Person has made such
examination or investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (iv) a statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; provided, however, that, with respect to
matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or certificates
of public officials.



     SECTION 14.05 Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.



     SECTION 14.06 Payment Date Other Than a Business Day. If any Interest Payment Date or
the Maturity Date shall not be a Business Day, then payment of principal of or interest on the
Securities of any series will be made on the next succeeding Business Day with the same force and
effect as if made on the date such payment was due, and no interest will accrue on such payment for
the period from and after such Interest Payment Date or the Maturity Date to the date of such
payment on the next succeeding Business Day.



     SECTION 14.07 Governing Law. This Indenture and the Securities shall be governed by,
and construed in accordance with, the laws of the State of New York. The Trustee, the Company, the
Guarantors and the Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture or the Securities.



     SECTION 14.08 No Adverse Interpretation of Other Agreements. This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of the
Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.



     SECTION 14.09 No Recourse Against Others. No recourse for the payment of the principal
of, or interest on, any of the Securities, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or any
Guarantor contained in this Indenture or in any of the Securities, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator or against any past,
present or future partner, stockholder, other equityholder, officer, director, employee or
controlling Person, as such, of the Company or any Guarantor or of any successor Person, either
directly or through the Company or any Guarantor or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the
issue of the Securities.



50









 





     SECTION 14.10 Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor. All agreements of each Guarantor in this Indenture shall bind its successors, except
as otherwise provided in Section 13.05.



     SECTION 14.11 Duplicate 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 14.12 Separability. In case any provision in this Indenture or in the
Securities 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 14.13 Table of Contents, Headings, Etc. The table of contents 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 hereof and shall in no way modify or restrict any of the terms and
provisions hereof.



     SECTION 14.14 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original and all of which taken together shall constitute
one and the same instrument.



     SECTION 14.15 Force Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



51









 





SIGNATURES




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



	 	 	 	 	 
	 	 	GAMESTOP CORP.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	[SUBSIDIARY GUARANTORS]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	[TRUSTEE]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





52









 





EXHIBIT A

FORM OF SECURITY



[Each Global Security shall also bear the following legend:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF CEDE & CO.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFERS
OF THIS GLOBAL SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
NOMINEES OF CEDE & CO. OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.] [If the Security is an
Original Issue Discount Security, insert the following: FOR PURPOSES OF SECTION 1272 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (“THE CODE”), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS
DEFINED IN SECTION 1273(A)(1) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(A)) WITH RESPECT
TO THIS SECURITY IS ___, THE ISSUE DATE (AS DEFINED IN SECTION 1275(A)(2) OF THE CODE AND TREASURY
REGULATION SECTION 1.1273-2(A)(2)) OF THIS SECURITY IS ___, THE ISSUE PRICE (AS DEFINED IN SECTION
1273(B) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-2(A)) OF THIS SECURITY IS ___, AND THE
YIELD TO MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(B)) OF THIS SECURITY IS ___.]




A-1









 





[FACE OF SECURITY]

GAMESTOP CORP.




[Title of Security]

[CUSIP] [Common Code] [ISIN] [________]

No. __Principal Amount $__




     GameStop Corp., a Delaware corporation (the “Company,” which term includes any successor under
the Indenture hereinafter referred to), for value received, promises to pay to                    
        , or its registered
assigns, the principal sum of          [dollars] ([$]

           ) on           , ___[If the Security is to bear interest prior to maturity,
insert—, and to pay interest thereon from                     or from the most
recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on
___and ___in each year,
commencing      , ___ at the rate of ___% per annum, until
the principal hereof is paid or made available for payment [If applicable insert—, and (to the
extent that the payment of such interest shall be legally enforceable) at the rate of ___% per
annum on any overdue principal and on any overdue installment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid to the Holder in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the Record Date for such interest, which
shall be the           or
          (whether or not a Business Day), as the case may be, next preceding such Interest Payment
Date.].


[If the Security is not to bear interest prior to maturity, insert—The principal of this Security
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and, in such case, the overdue principal of this Security
shall bear interest at the rate of      % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such default in payment
to the date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.]




     The Company will pay principal [and, as provided above, interest] in money of the [United
States] that at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and interest by its check payable in such money. It may mail
an interest check to a Holder’s registered address (as reflected in the Security Register). If any
Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the payment
of principal and interest will be made on the next succeeding Business Day as if made on the date
such payment was due, and no interest will accrue on such payment for the period from and after the
Interest Payment Date or Maturity Date to the date of such payment on the next succeeding Business
Day.



     Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



     Additional provisions of this Security are set forth on the other side of this Security.



A-2









 





     IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile
by its duly authorized officer.



	 	 	 	 	 
	 	 	GAMESTOP CORP.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





TRUSTEE’S CERTIFICATE OF AUTHENTICATION




     This is one of the Securities described in the within-mentioned Indenture.



Date: ________, ____




[Insert name of Trustee], as

Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-3









 





[REVERSE SIDE OF SECURITY]

GAMESTOP CORP.




[Title of Security]




1. Indenture.




     This Security is one of a duly authorized issue of debentures, notes or other evidence of
indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter
specified, which series is initially limited in aggregate principal amount to [$]                    
        , all of such Securities issued and to be issued under an Indenture dated as
of            ,
     ___ (the “Indenture”) among the Company, the guarantors party thereto
(the “Guarantors”) and [Insert name of Trustee], as trustee (the
“Trustee”). Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Securities are 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 Security and the terms of the Indenture, the terms of the Indenture shall
control.



     As provided in the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may
be subject to different covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of a series of Securities designated pursuant thereto
as .



     The Securities are general unsecured obligations of the Company.



     The Company may, subject to Article Four of the Indenture and applicable law, issue additional
Securities of any series under the Indenture.



     2. Paying Agent, Calculation Agent and Registrar.



     Initially, the Trustee will act as authenticating agent, Paying Agent and Registrar. The
Company may change any authenticating agent, Paying Agent or Registrar without notice. The Company,
any Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.



     3. Redemption.



     [The Securities of this series are not redeemable prior to the Maturity Date.] [The Securities
of this series may be redeemed at any time [on or after ___, ___], as a whole or in part, at the
option of the Company, upon mailing notice of such redemption not less than 30 and not more than 60
days to the Holders thereof, at a redemption price equal
to    .]



     4. Guarantees.



     The Guarantors have unconditionally guaranteed the due and punctual payment of the principal,
and



A-4









 




interest, if any, on, the Securities of this series when and as the same shall become due and
payable, whether
at Stated Maturity, upon any redemption, by declaration or otherwise in the manner and to the
extent set forth in the Indenture. The Subsidiary Guarantees will irrevocably terminate upon the
terms and conditions set forth in the Indenture.




     5. Denominations; Transfer; Exchange.



     The Securities of this series are in registered form without coupons in denominations of
[$1,000] of principal amount and multiples of [$1,000] in excess thereof. A Holder may register the
transfer or exchange of Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture.



     6. Persons Deemed Owners.



     A Holder shall be treated as the owner of a Security for all purposes. 7. Unclaimed Money.



     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and the Paying Agent will pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease. In no event will interest accrue on such unclaimed monies. 8. Discharge
Prior to Maturity.



     In accordance with the terms of the Indenture, if the Company deposits with the Trustee money
or Government Obligations sufficient to pay the then outstanding principal of and accrued and
unpaid interest on the Securities of this series (a) the Company will be discharged from the
Securities of this series and the Indenture with respect to the Securities of this series, except
in certain circumstances for certain provisions thereof, and (b) the Company will be discharged
from certain covenants set forth in the Indenture. 9. Amendment; Supplement; Waiver.



     Subject to certain exceptions, (a) the Indenture or the Securities of this series may be
amended or supplemented with the consent of the Holders of at least a majority in principal amount
of the Securities of this series then outstanding and (b) any past or existing Default or Event of
Default or compliance with any provision may be waived with the consent of the Holders of at least
a majority in principal amount of the Securities of this series then outstanding. Without notice to
or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the
Securities of this series to, among other things, cure any ambiguity, defect or inconsistency and
make any change that does not materially and adversely affect the rights of any Holder.



     10. Restrictive Covenants.



     The Indenture imposes certain limitations on the ability of the Company, among other things,
to (a) create liens upon any principal property, (b) engage in sale and leaseback transactions or
(c) merge, consolidate, transfer, lease or otherwise dispose of substantially all of its assets. On
or before a date not more than 120 days after the end of each fiscal year, the Company shall
deliver to the Trustee an Officer’s Certificate stating whether or not the signers thereof know of
any Default or Event of Default under such restrictive covenants.



     11. Successor Persons.



A-5









 





     When a successor Person or other entity assumes all the obligations of its predecessor under
the
Securities and the Indenture, the predecessor Person will be released from those obligations.



     12. Defaults and Remedies.



     [If the Security is not an Original Issue Discount Security, — If any Event of Default with
respect to Securities of this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture.]



     [If the Security is an Original Issue Discount Security, — If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Company’s obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this series shall
terminate.]



     13. Defeasance.



     The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this security and (b) certain restrictive covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security.



     14. Trustee Dealings with the Company.



     The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from and perform services for the Company, any Guarantor or their respective
Affiliates and may otherwise deal with the Company, any Guarantor or their respective Affiliates as
if it were not the Trustee.



     15. No Recourse Against Others.



     No incorporator or any past, present or future partner, stockholder, other equity holder,
officer, director, employee or controlling Person, as such, of the Company or any Guarantor or of
any successor Person shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the Securities.



     16. Authentication.



     This Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on the other side of this Security. 17. Abbreviations.



     Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN NET (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUTS (= Custodian) and U/G/M/A (= Uniform Gifts to
Minors



A-6









 





Act).




     18. Governing Law.



     This Security shall be governed by, and construed in accordance with, the laws of the State of
New York. The Trustee, the Company, each of the Guarantors and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding arising out of or
relating to the Securities.



     The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge. Requests may be made to GameStop Corp., 625 Westport
Parkway, Grapevine, Texas 76051; Attention: Chief Financial Officer.




A-7










 







ASSIGNMENT FORM




     I or we assign and transfer this Security to:                                        
Insert social security or other identifying number of assignee
Print or type name, address and zip code of assignee and irrevocably appoint
        , as agent, to transfer this Security on the books of the Company.


The agent may substitute another to act for him.




Date:




Signed



(Sign exactly as name appears on the other side of this Security)




Signature Guarantee*:




 




* The Holder’s signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of

    Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an “eligible guarantor

    institution” as
defined by Rule l7Ad-15 under the Exchange Act.





A-8









 








EXHIBIT B



Form of Notation of Subsidiary Guarantee




     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of
___,
     ___________ (the “Indenture”)
by and among the Company, the Subsidiary Guarantors party to the Indenture and [Insert name of
Trustee], as trustee (the “Trustee”), (a) the due and punctual
payment of the principal of, and interest, if any, on, the Securities when due, whether at Stated
Maturity, by acceleration, redemption, purchase or otherwise, and (b) the full and punctual
performance of all other obligations of the Company to the Holders or the Trustee under the
Indenture and the Securities within the grace period set forth in Section 6.01(c) of the Indenture,
if applicable. The obligations of the Subsidiary Guarantors to the Holders of Securities and to the
Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article
Thirteen of the Indenture and reference is hereby made to the Indenture for the precise terms of
the Subsidiary Guarantee, including provisions relating to the release or termination of the
Subsidiary Guarantee(s). Each Holder of Securities, by accepting the same, agrees to and shall be
bound by such provisions.



	 	 	 	 	 	 	 	 	 
	 	 	[SUBSIDIARY GUARANTOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	Dated:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





B-1