exv4w13



 





Exhibit 4.13




EXECUTION COPY




FEDERAL-MOGUL CORPORATION, as Issuer,




THE DOMESTIC SUBSIDIARY GUARANTORS (as defined herein),




U.S. BANK NATIONAL ASSOCIATION, as Trustee




INDENTURE




Dated as of December 27, 2007




$305,236,000




Senior Subordinated Third Priority Secured Notes due 2018





 









 








CROSS REFERENCE SHEET



THIS CROSS REFERENCE SHEET SHOWS THE LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED PURSUANT
TO SECTION 310-318(a), INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939.




	 	 	 	 	 
	TRUST INDENTURE	 	 	 	 
	ACT SECTION	 	 	 	INDENTURE SECTION
	SECTION 310
	 	(a)(1)	 	7.8, 7.9, 7.10
	 
	 	(a)(2)	 	7.10
	 
	 	(a)(3)	 	7.13
	 
	 	(a)(4)	 	Not applicable
	 
	 	(a)(5)	 	7.10
	 
	 	(b)	 	7.8, 7.10, 7.11
	 
	 	(c)	 	Not applicable
	SECTION 311
	 	(a)	 	7.11
	 
	 	(b)	 	7.11
	 
	 	(c)	 	Not applicable
	SECTION 312
	 	(a)	 	2.5
	 
	 	(b)	 	14.3
	 
	 	(c)	 	14.3
	SECTION 313
	 	(a)	 	7.6
	 
	 	(b)(1)	 	10.3, 10.5
	 
	 	(b)(2)	 	7.6
	 
	 	(c)	 	7.6
	 
	 	(d)	 	7.6
	SECTION 314
	 	(a)	 	4.2, 4.4, 10.2
	 
	 	(b)	 	10.2
	 
	 	(c)(1)	 	4.4, 10.3, 14.4
	 
	 	(c)(2)	 	10.3, 14.4
	 
	 	(c)(3)	 	14.4
	 
	 	(d)	 	10.2, 10.3, 10.5, 10.6
	 
	 	(e)	 	4.4, 10.2, 14.4, 14.5
	 
	 	(f)	 	4.4, 14.4
	SECTION 315
	 	(a)	 	7.1
	 
	 	(b)	 	7.5
	 
	 	(c)	 	7.1
	 
	 	(d)	 	7.1
	 
	 	(e)	 	6.11
	SECTION 316
	 	(a)(last sentence)	 	14.6
	 
	 	(a)(1)(A)	 	6.5
	 
	 	(a)(1)(B)	 	6.4
	 
	 	(a)(2)	 	Not applicable
	 
	 	(b)	 	6.7, 8.4
	 
	 	(c)	 	2.14
	SECTION 317
	 	(a)(1)	 	6.8
	 
	 	(a)(2)	 	6.9
	 
	 	(b)	 	2.4
	SECTION 318
	 	(a)	 	14.1








 




			
	This Cross Reference Sheet shall not, for any purpose, be deemed to be a part of the Indenture.






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	2	 
	SECTION 1.1.
	 	Definitions	 	 	2	 
	SECTION 1.2.
	 	Other Definitions	 	 	38	 
	SECTION 1.3.
	 	Incorporation by Reference of Trust Indenture Act	 	 	39	 
	SECTION 1.4.
	 	Rules of Construction	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE 2 THE NOTES	 	 	40	 
	SECTION 2.1.
	 	Dating; Incorporation of Form in Indenture	 	 	40	 
	SECTION 2.2.
	 	Execution and Authentication	 	 	40	 
	SECTION 2.3.
	 	Agents	 	 	41	 
	SECTION 2.4.
	 	Paying Agent to Hold Money in Trust	 	 	42	 
	SECTION 2.5.
	 	Noteholder Lists	 	 	42	 
	SECTION 2.6.
	 	Transfer and Exchange	 	 	42	 
	SECTION 2.7.
	 	Replacement Notes	 	 	43	 
	SECTION 2.8.
	 	Outstanding Notes	 	 	43	 
	SECTION 2.9.
	 	Temporary Notes	 	 	44	 
	SECTION 2.10.
	 	Cancellation	 	 	44	 
	SECTION 2.11.
	 	Defaulted Interest	 	 	44	 
	SECTION 2.12.
	 	Deposit of Moneys	 	 	44	 
	SECTION 2.13.
	 	CUSIP Number	 	 	45	 
	SECTION 2.14.
	 	Record Date	 	 	45	 
	SECTION 2.15.
	 	Payments to Holders	 	 	45	 
	SECTION 2.16.
	 	Closing Deliverables	 	 	46	 
	SECTION 2.17.
	 	Book-Entry Provisions for Global Notes	 	 	48	 
	 
	 	 	 	 	 	 
	ARTICLE 3 REDEMPTION	 	 	49	 
	SECTION 3.1.
	 	Notices to Trustee	 	 	49	 
	SECTION 3.2.
	 	Selection by Trustee of Notes to Be Redeemed	 	 	49	 
	SECTION 3.3.
	 	Notice of Redemption	 	 	49	 
	SECTION 3.4.
	 	Effect of Notice of Redemption	 	 	50	 
	SECTION 3.5.
	 	Deposit of Redemption Price	 	 	51	 
	SECTION 3.6.
	 	Notes Redeemed in Part	 	 	51	 
	SECTION 3.7.
	 	Optional Redemption	 	 	51	 
	SECTION 3.8.
	 	Mandatory Redemption	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE 4 COVENANTS	 	 	52	 
	SECTION 4.1.
	 	Payment of Notes	 	 	52	 
	SECTION 4.2.
	 	SEC Reporting	 	 	52	 
	SECTION 4.3.
	 	Waiver of Stay, Extension or Usury Laws	 	 	53	 
	SECTION 4.4.
	 	Compliance Certificates	 	 	53	 
	SECTION 4.5.
	 	Taxes	 	 	54	 
	SECTION 4.6.
	 	Corporate Existence	 	 	54	 
	SECTION 4.7.
	 	Maintenance of Insurance	 	 	54	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	SECTION 4.8.
	 	Inspection of Books and Records; Compliance with Laws	 	 	55	 
	SECTION 4.9.
	 	Additional Pledges	 	 	55	 
	SECTION 4.10.
	 	Limitation on Additional Indebtedness	 	 	55	 
	SECTION 4.11.
	 	Limitations on Additional Liens	 	 	59	 
	SECTION 4.12.
	 	Limitation on Certain Asset Sales	 	 	59	 
	SECTION 4.13.
	 	Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries	 	 	61	 
	SECTION 4.14.
	 	Limitation on Restricted Payments	 	 	62	 
	SECTION 4.15.
	 	Limitations on Investments	 	 	65	 
	SECTION 4.16.
	 	Limitation on Transactions with Affiliates	 	 	65	 
	SECTION 4.17.
	 	Sales and Leasebacks	 	 	66	 
	SECTION 4.18.
	 	Lines of Business	 	 	66	 
	SECTION 4.19.
	 	Limitation on Status as Investment Company	 	 	66	 
	SECTION 4.20.
	 	[Reserved]	 	 	66	 
	SECTION 4.21.
	 	Further Assurances to the Trustee	 	 	66	 
	SECTION 4.22.
	 	Future Subsidiary Guarantors	 	 	66	 
	SECTION 4.23.
	 	Designation of Subsidiaries and Unrestricted Subsidiaries	 	 	67	 
	SECTION 4.24.
	 	Restriction on Sale and Issuance of Certain Subsidiary Capital Stock	 	 	68	 
	SECTION 4.25.
	 	Note Documents	 	 	68	 
	SECTION 4.26.
	 	Subsidiary Guarantees	 	 	69	 
	SECTION 4.27.
	 	Change of Control	 	 	69	 
	SECTION 4.28.
	 	Future Pledges of Collateral to Secure PIK Interest	 	 	70	 
	SECTION 4.29.
	 	Limitation on Layering	 	 	70	 
	 
	 	 	 	 	 	 
	ARTICLE 5 SUCCESSOR CORPORATION	 	 	71	 
	SECTION 5.1.
	 	Merger, Consolidation or Sale of Assets	 	 	71	 
	SECTION 5.2.
	 	Successor Person Substituted	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE 6 DEFAULTS AND REMEDIES	 	 	72	 
	SECTION 6.1.
	 	Events of Default	 	 	72	 
	SECTION 6.2.
	 	Acceleration	 	 	75	 
	SECTION 6.3.
	 	Other Remedies	 	 	76	 
	SECTION 6.4.
	 	Waiver of Defaults and Events of Default	 	 	76	 
	SECTION 6.5.
	 	Control by Majority	 	 	76	 
	SECTION 6.6.
	 	Limitation on Suits	 	 	77	 
	SECTION 6.7.
	 	Rights of Holders to Receive Payment	 	 	77	 
	SECTION 6.8.
	 	Collection Suit by Trustee	 	 	77	 
	SECTION 6.9.
	 	Trustee May File Proofs of Claim	 	 	77	 
	SECTION 6.10.
	 	Priorities	 	 	78	 
	SECTION 6.11.
	 	Undertaking for Costs	 	 	78	 
	SECTION 6.12.
	 	Restoration of Rights and Remedies	 	 	78	 
	SECTION 6.13.
	 	Delay or Omission Not Waiver	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE 7 TRUSTEE	 	 	79	 
	SECTION 7.1.
	 	Duties of Trustee	 	 	79	 
	SECTION 7.2.
	 	Rights of Trustee	 	 	80	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	SECTION 7.3.
	 	Individual Rights of Trustee	 	 	81	 
	SECTION 7.4.
	 	Trustee’s Disclaimer	 	 	81	 
	SECTION 7.5.
	 	Notice of Defaults	 	 	81	 
	SECTION 7.6.
	 	Reports by Trustee to Holders	 	 	81	 
	SECTION 7.7.
	 	Compensation and Indemnity	 	 	82	 
	SECTION 7.8.
	 	Replacement of Trustee	 	 	82	 
	SECTION 7.9.
	 	Successor Trustee by Consolidation, Merger or Conversion	 	 	83	 
	SECTION 7.10.
	 	Eligibility; Disqualification	 	 	83	 
	SECTION 7.11.
	 	Preferential Collection of Claims Against Company	 	 	84	 
	SECTION 7.12.
	 	Paying Agents	 	 	84	 
	SECTION 7.13.
	 	Co-Trustee and Separate Trustees	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	85	 
	SECTION 8.1.
	 	Without Consent of Holders	 	 	85	 
	SECTION 8.2.
	 	With Consent of Holders	 	 	87	 
	SECTION 8.3.
	 	TIA Compliance	 	 	88	 
	SECTION 8.4.
	 	Revocation and Effect of Consents	 	 	88	 
	SECTION 8.5.
	 	Notation on or Exchange of Notes	 	 	88	 
	SECTION 8.6.
	 	Trustee to Sign Amendments, etc.	 	 	89	 
	 
	 	 	 	 	 	 
	ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE	 	 	89	 
	SECTION 9.1.
	 	Discharge of Indenture	 	 	89	 
	SECTION 9.2.
	 	Legal Defeasance	 	 	90	 
	SECTION 9.3.
	 	Covenant Defeasance	 	 	90	 
	SECTION 9.4.
	 	Conditions to Legal Defeasance or Covenant Defeasance	 	 	90	 
	SECTION 9.5.
	 	Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	 	 	92	 
	SECTION 9.6.
	 	Reinstatement	 	 	92	 
	SECTION 9.7.
	 	Moneys Held by Paying Agent	 	 	93	 
	SECTION 9.8.
	 	Moneys Held by Trustee	 	 	93	 
	SECTION 9.9.
	 	[Reserved]	 	 	93	 
	 
	 	 	 	 	 	 
	ARTICLE 10 COLLATERAL AND SECURITY	 	 	94	 
	SECTION 10.1.
	 	Security	 	 	94	 
	SECTION 10.2.
	 	Certificates, Opinions and Recording	 	 	94	 
	SECTION 10.3.
	 	Release of Collateral	 	 	95	 
	SECTION 10.4.
	 	Protection of the Trust Estate	 	 	97	 
	SECTION 10.5.
	 	Certificates of the Company	 	 	97	 
	SECTION 10.6.
	 	Certificates of the Trustee	 	 	98	 
	SECTION 10.7.
	 	Authorization of Actions to be Taken by the Trustee Under the Security Documents	 	 	98	 
	SECTION 10.8.
	 	Authorization of Receipt of Funds by the Trustee Under the Security Documents	 	 	98	 
	SECTION 10.9.
	 	Termination of Security Interest	 	 	99	 
	SECTION 10.10.
	 	Cooperation of Trustee	 	 	99	 
	SECTION 10.11.
	 	Collateral Trustee	 	 	99	 
	SECTION 10.12.
	 	Agents Under Security Documents	 	 	99	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE 11 DOMESTIC SUBSIDIARY GUARANTEE OF NOTES	 	 	100	 
	SECTION 11.1.
	 	Domestic Subsidiary Guarantee	 	 	100	 
	SECTION 11.2.
	 	Execution and Delivery of Supplemental Indentures	 	 	101	 
	SECTION 11.3.
	 	Limitation of Domestic Subsidiary Guarantee	 	 	102	 
	SECTION 11.4.
	 	Release of Domestic Subsidiary Guarantor	 	 	102	 
	SECTION 11.5.
	 	Subrogation	 	 	103	 
	SECTION 11.6.
	 	Benefits Acknowledged	 	 	103	 
	SECTION 11.7.
	 	Evidence of Domestic Subsidiary Guarantees	 	 	103	 
	 
	 	 	 	 	 	 
	ARTICLE 12 SUBORDINATION	 	 	103	 
	SECTION 12.1.
	 	Notes Subordinated to Designated Senior Debt	 	 	103	 
	SECTION 12.2.
	 	No Payment on Notes in Certain Circumstances	 	 	104	 
	SECTION 12.3.
	 	Payment Over of Proceeds upon Dissolution, Etc.	 	 	105	 
	SECTION 12.4.
	 	Payments May Be Paid Prior to Dissolution	 	 	106	 
	SECTION 12.5.
	 	Subrogation	 	 	107	 
	SECTION 12.6.
	 	Obligations of the Company Unconditional	 	 	107	 
	SECTION 12.7.
	 	Notice to Trustee	 	 	107	 
	SECTION 12.8.
	 	Reliance on Judicial Order or Certificate of Liquidating Agent	 	 	108	 
	SECTION 12.9.
	 	Trustee’s Relation to Designated Senior Debt	 	 	108	 
	SECTION 12.10.
	 	Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Designated Senior Debt	 	 	108	 
	SECTION 12.11.
	 	Noteholders Authorize Trustee To Effectuate Subordination of Notes	 	 	109	 
	SECTION 12.12.
	 	This Article 12 Not To Prevent Events of Default	 	 	109	 
	SECTION 12.13.
	 	Trustee’s Compensation Not Prejudiced	 	 	109	 
	 
	 	 	 	 	 	 
	ARTICLE 13 SUBORDINATION OF THE DOMESTIC SUBSIDIARY GUARANTEES	 	 	110	 
	SECTION 13.1.
	 	Domestic Subsidiary Guarantees Subordinated to Guarantor Senior Debt	 	 	110	 
	SECTION 13.2.
	 	Guarantees in Certain Circumstances	 	 	110	 
	SECTION 13.3.
	 	Payment Over of Proceeds upon Dissolution, Etc.	 	 	111	 
	SECTION 13.4.
	 	Payments May Be Paid Prior to Dissolution	 	 	112	 
	SECTION 13.5.
	 	Subrogation	 	 	113	 
	SECTION 13.6.
	 	Obligations of each Domestic Subsidiary Guarantor Unconditional	 	 	113	 
	SECTION 13.7.
	 	Notice to Trustee	 	 	113	 
	SECTION 13.8.
	 	Reliance on Judicial Order or Certificate of Liquidating Agent	 	 	114	 
	SECTION 13.9.
	 	Trustee’s Relation to Guarantor Senior Debt	 	 	114	 
	SECTION 13.10.
	 	Subordination Rights Not Impaired by Acts or Omissions of the Company, the Domestic Subsidiary Guarantors or Holders of Guarantor Senior Debt	 	 	114	 
	SECTION 13.11.
	 	Holders Authorize Trustee To Effectuate Subordination of the Domestic Subsidiary Guarantees	 	 	115	 
	SECTION 13.12.
	 	This Article 13 Not To Prevent Events of Default	 	 	115	 
	SECTION 13.13.
	 	Trustee’s Compensation Not Prejudiced	 	 	116	 
	 
	 	 	 	 	 	 
	ARTICLE 14 MISCELLANEOUS	 	 	116	 
	SECTION 14.1.
	 	Conflict with the TIA	 	 	116	 






iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 14.2.
	 	Notices	 	 	116	 
	SECTION 14.3.
	 	Communication by Holders with Other Holders	 	 	117	 
	SECTION 14.4.
	 	Certificate and Opinion as to Conditions Precedent	 	 	117	 
	SECTION 14.5.
	 	Statements Required in Certificate and Opinion	 	 	118	 
	SECTION 14.6.
	 	When Treasury Notes Disregarded	 	 	118	 
	SECTION 14.7.
	 	Rules by Trustee and Agents	 	 	118	 
	SECTION 14.8.
	 	Business Days; Legal Holidays	 	 	118	 
	SECTION 14.9.
	 	Governing Law	 	 	119	 
	SECTION 14.10.
	 	No Adverse Interpretation of Other Agreements	 	 	119	 
	SECTION 14.11.
	 	No Recourse Against Others	 	 	119	 
	SECTION 14.12.
	 	Successors	 	 	119	 
	SECTION 14.13.
	 	Multiple Counterparts	 	 	120	 
	SECTION 14.14.
	 	Table of Contents, Headings, etc.	 	 	120	 
	SECTION 14.15.
	 	Separability	 	 	120	 






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Note
	Exhibit B

	 	Form of Supplemental Indenture for Future Guarantors
	Exhibit C

	 	Collateral Trust Agreement
	Exhibit D

	 	Form of Officers’ Certificate Pursuant to Section 4.4(c)
	Exhibit E

	 	Collateral Agreement
	Exhibit F

	 	Form of Mortgages
	Exhibit G

	 	Senior Loan Agreement
	Exhibit H

	 	Form of Global Note Legend
	Exhibit I

	 	Intercreditor Agreement
	Exhibit J

	 	Exit Facility Agreement
	Exhibit K

	 	Registration Rights Agreement
	Exhibit L

	 	Form of Legal Opinion
	Exhibit M

	 	Form of Foreign Subsidiary Guarantee






SCHEDULES




	 	 	 
	Schedule 1

	 	List of Domestic Subsidiary Guarantors
	Schedule 2

	 	Foreign Pledge Agreements
	Schedule 3

	 	Joint Ventures
	Schedule 4

	 	Mortgaged Property
	Schedule 5

	 	Existing Indebtedness
	Schedule 6

	 	Intercompany Loans Owed to U.K. Subsidiaries
	Schedule 7

	 	List of Foreign Subsidiary Guarantors
	Schedule 8

	 	Restructuring Foreign Subsidiaries






v









 





          THIS INDENTURE is dated as of December 27, 2007 (the “Effective Date”), among FEDERAL-MOGUL
CORPORATION, a Delaware corporation, as issuer (the “Company”), the DOMESTIC SUBSIDIARY GUARANTORS
listed on Schedule 1 hereto (the “Domestic Subsidiary Guarantors”) and U.S. BANK NATIONAL
ASSOCIATION, a United States banking corporation, as trustee (the “Trustee”).




RECITALS




          WHEREAS, on October 1, 2001 (the “Petition Date”), the Company and certain of its domestic
Subsidiaries (collectively, the “U.S. Debtors”) filed voluntary petitions under Chapter 11 of Title
11 of the United States Code (the “Bankruptcy Law”) with the United States Bankruptcy Court for the
District of Delaware (the “Bankruptcy Court”) and continued in the possession of their assets and
in the management of their businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Law;




          WHEREAS, on November 21, 2006, the U.S. Debtors, together with certain subsidiaries of the
Company organized under the laws of the United Kingdom (collectively, the “Debtors”), filed the
Reorganization Plan (as defined herein);




          WHEREAS, on November 8, 2007, the Bankruptcy Court entered the Confirmation Order (as defined
herein);




          WHEREAS, on November 13, 2007, the District Court (as defined herein) affirmed the
Confirmation Order;




          WHEREAS, in connection with the confirmation and implementation of the Reorganization Plan,
each in partial satisfaction of the Bank Claims and Surety Claims (as each is defined in the
Reorganization Plan), the Company is issuing the Notes (as defined herein) to holders of the Bank
Claims and the Surety Claims;




          WHEREAS, the Company has duly authorized the creation of this issue of the Notes and, to
provide therefore, the Company has duly authorized the execution and delivery of this Indenture;




          WHEREAS, all things necessary to make the Notes, when executed by the Company and
authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the
Company, and to make this Indenture a valid and binding agreement of the Company, in accordance
with their and its terms, have been done;




          WHEREAS, each of the Guarantors has duly authorized its Guarantee (as defined herein) of the
Notes and, to provide therefore, each Guarantor has duly authorized the execution and delivery of
this Indenture or the Foreign Subsidiary Guarantee (as defined herein), as applicable; and




          WHEREAS, all things necessary to make the Guarantees, when the Notes have been authenticated
and delivered hereunder and duly issued by the Company, the valid and binding obligations of the
Guarantors, and to make this Indenture or the Foreign Subsidiary



 









 






Guarantee, as applicable, a valid agreement of the Guarantors, in accordance with their terms,
have been done.




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




          For and in consideration of the premises and the acquisition of the Notes for the Holders
thereof, it is mutually agreed, for the equal and ratable benefit of all Holders of the Notes, as
follows:




ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE




          SECTION 1.1.   Definitions. All terms defined in the Reorganization Plan shall have
such defined meanings when used herein or in any Exhibit hereto unless otherwise defined herein or
therein. As used in this Indenture, the following terms shall have the following meanings:




     “Acquired Indebtedness” means Indebtedness of a Person existing at the time such
Person becomes a Subsidiary or assumed in connection with an Asset Acquisition from such Person.



     “Acquisition Indebtedness” means Indebtedness incurred by the Company or by a
Subsidiary after the Effective Date the proceeds of which are used for an Asset Acquisition.



     “Additional Liquidity Facility” means the credit or loan facility or facilities
provided to one or more other Group Members, and any refinancing, refunding, renewal or extension
thereof in accordance with Section 6.2(v) of the Senior Loan Agreement in effect as of the date
hereof.



     “Additional Liquidity Facility Indebtedness” means the following obligations, whether
outstanding on the Effective Date or thereafter incurred: all Indebtedness and other monetary
obligations of the Company or any Subsidiary of the Company under or in respect of the Additional
Liquidity Facility or any Interest Rate Agreement, Currency Agreement or Swap Agreement related to
the Additional Liquidity Facility, whether for principal, interest (including interest accruing
after the filing of a petition by or against the Company or any Subsidiary of the Company under any
Bankruptcy Laws, whether or not such interest is allowed as a claim after such filing in any
proceeding under such law), fees, expenses, indemnification or otherwise.



     “Adjusted Excess Cash Flow” has the meaning set forth in the Intercreditor Agreement.



     “Adjusted Positive EBITDA Variance” has the meaning set forth in the Intercreditor
Agreement.



     “Affiliate” means, as to any Person, any other Person that, directly or indirectly, is
in control of, is controlled by, or is under common control with, such Person. For purposes of
this definition, “control” of a Person means the power, directly or indirectly, to direct or cause
the direction of the management and policies of such Person, whether by contract or otherwise.



2









 





     “Agent” means any Registrar, Paying Agent, co-registrar or agent for service of
notices and demands.



     “Anticipated Japanese Consolidation” means, with respect to three of the Japanese
manufacturing, technical and distribution facilities of the Company and its Subsidiaries, that are
related primarily to the Company’s and its Subsidiaries’ System Protection Group and Aftermarket
operations, the anticipated consolidation of such facilities into one facility that will be located
in Japan.



     “Applicable Amount” means (a) with respect to Adjusted Excess Cash Flow for any fiscal
year, the applicable amount thereof required to be applied to the Notes hereunder determined
pursuant to Section 4.4(a)(i) of the Intercreditor Agreement and (b) with respect to Adjusted
Positive EBITDA Variance for any fiscal year, the applicable amount thereof required to be applied
to the Notes hereunder determined pursuant to Section 4.4(a)(ii) of the Intercreditor Agreement.



     “Asset Acquisition” means (a) an Investment by the Company or any Subsidiary of the
Company in any other Person pursuant to which such Person shall become a Subsidiary of the Company,
or shall be merged with or into the Company or any Subsidiary of the Company, (b) the acquisition
by the Company or any Subsidiary of the Company of the assets of any Person (other than a
Subsidiary of the Company) which constitute all or substantially all of the assets of such Person
or (c) the acquisition by the Company or any Subsidiary of the Company of any division or line of
business of any Person (other than a Subsidiary of the Company).



     “Asset Sale” means the direct or indirect sale, transfer, issuance, conveyance, lease,
sub-lease (as lessor or sublessor) (other than operating leases entered into in the ordinary course
of business pursuant to ordinary business terms), assignment or other disposition (including,
without limitation, by Condemnation) and any merger or consolidation of any Subsidiary of the
Company with or into another Person (other than the Company or any Wholly-Owned Subsidiary of the
Company) of (a) any Capital Stock in any Subsidiary, (b) real property owned by the Company or any
Subsidiary thereof, or a division, line of business or comparable business segment of the Company
or any Subsidiary thereof or (c) other property, assets or rights (including, without limitation,
leasehold rights) of the Company, any Subsidiary thereof or any division, line of business of the
Company or any Subsidiary thereof; provided, however, that Asset Sales shall not
include:




     (i) dispositions of assets in a single transaction or series of related
transactions that yield gross proceeds to any Group Member (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other non-cash
proceeds) of less than or equal to $1,000,000;




     (ii) the disposition of obsolete or worn-out property in the ordinary course of
business;




     (iii) the sale of inventory in the ordinary course of business and dispositions
of Cash Equivalents in the ordinary course of business;



3









 






     (iv) the disposition by any Subsidiary of any or all its assets (including,
without limitation, transfers of intercompany loans or equity Investments) to the
Company or any Wholly-Owned Subsidiary that is a Guarantor or the disposition of any
or all of the assets of any Subsidiary that is not a Guarantor to any other
Subsidiary;




     (v) the liquidation or dissolution of any Subsidiary that has disposed of all
its assets as permitted under this Indenture or which otherwise has no assets;




     (vi) sales, issuances, leases, conveyances, transfers, assignments or other
dispositions by the Company or a Subsidiary as a result of the implementation of the
Reorganization Plan and the Tax Restructuring;




     (vii) the liquidation of any Joint Venture provided that the assets and
liabilities thereof are distributed to the owners of such Joint Venture, pro rata,
in accordance with such owners’ respective equity interests in such Joint Venture,
provided, further, that Net Cash Proceeds are applied in accordance
with Section 4.12;




     (viii) any Subsidiary that is not a Guarantor may be liquidated or dissolved so
long as the aggregate book value of the assets of all Subsidiaries that have been
dissolved or liquidated pursuant to this clause (viii) shall be less than 10% of the
book value of the consolidated assets of the Group Members, taken as a whole (as set
forth in the most recent audited consolidated financial statements of the Company
delivered pursuant to Section 4.2);




     (ix) sales of Receivables, equipment and related assets (including contract
rights) of the type specified in the definition of “Qualified Securitization
Transaction” to a Securitization Entity;




     (x) Sale and Leaseback Transactions (A) consummated by Group Members in which
the transferee is the Company or a Wholly Owned Subsidiary that is a Guarantor, and
any Subsidiary which is not a Guarantor may consummate Sale and Leaseback
Transactions in which the transferor is another Subsidiary which is not a Guarantor
or (B) other Sale and Leaseback Transactions consummated by Group Members in an
amount not to exceed in the aggregate for all Group Members $150,000,000;




     (xi) for purposes of Section 4.12 only, the making of a Permitted Investment or
a disposition subject to or permitted by Section 4.14;




     (xii) without limiting the carve out for ordinary course operating leases set
forth in this definition, (a) operating leases to the Company and the Guarantors,
(b) operating leases to Joint Ventures of assets at a fair market value in an
aggregate amount not to exceed at any date the Joint Venture Basket then in effect
and (c) operating leases to Excluded Subsidiaries of assets at a fair market



4









 







value in an aggregate amount not to exceed at any date the Intercompany Basket
then in effect;




     (xiii) sales, conveyances, transfers, assignments or other dispositions by the
Company or a Subsidiary of (a) non-exclusive licenses and sublicenses of
Intellectual Property issued to the Company or any Subsidiary in the ordinary course
of business in a manner consistent with past practices of the Company and its
Subsidiaries and (ii) exclusive licenses and sublicenses of Intellectual Property
issued to the Company or any Subsidiary in the ordinary course of business in a
manner consistent with past practices of the Company and its Subsidiaries so long as
such license is exclusive only as to geographic area or use;




     (xiv) transactions complying with Section 5.1;




     (xv) issuance or sale of options to acquire Capital Stock of any Subsidiary to
such Subsidiary’s officers or employees pursuant to such Subsidiary’s employee stock
option or benefit plans provided that such options only vest upon a change
of control of or initial public offering by such Subsidiary and the exercise of all
such options will not result in a Change of Control of such Subsidiary;




     (xvi) without limiting the carve out for ordinary course operating leases set
forth in this definition sub-leases of leased real estate entered into by the
Company or any of its Subsidiaries in the ordinary course of business
provided that such lease is subordinated to any Mortgage on the affected
real estate and entered into by the Company or such Subsidiary, as the case may be,
in the ordinary course of business consistent with past practices;




     (xvii) dispositions in connection with Permitted Liens;




     (xviii) the sale or issuance of any Subsidiary’s Capital Stock to the Company
or any Wholly Owned Subsidiary that is a Guarantor or the sale or issuance of any
Excluded Subsidiary’s Capital Stock to any other Excluded Subsidiary;




     (xix) dispositions of Receivables pursuant to Factoring Arrangements, so long
as, on the last day of each calendar month, the aggregate amount of Receivables that
have been disposed of pursuant thereto and that are then outstanding shall not
exceed the Factoring Basket then in effect;




     (xx) any “Permitted Asset Sales” as defined in the Senior Loan Agreement as in
effect on the date hereof provided that the Net Cash Proceeds thereof are
applied in accordance with Section 4.12;




     (xxi) dispositions in connection with the U.K. Dissolution or the Company
Voluntary Arrangements;



5









 






     (xxii) dispositions constituting Investments permitted by Section 4.15, and any
Investment expressly permitted by Section 4.15 may be structured as a merger,
consolidation or amalgamation;




     (xxiii) transfers of Receivables and related rights by F-M Canada to the
Company;




     (xxiv) involuntary dispositions consisting of property or casualty events or
condemnation proceedings;




     (xxv) dispositions of in-plant maintenance, repair and operating and perishable
tooling operations to third parties in connection with the outsourcing and such
operations; and




     (xxvi) the Wagner Lighting Divestiture.



     “Bankruptcy Court” shall have the meaning as defined in the Recitals.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors as in effect from time to time.



     “Blockage Period” shall have the meaning provided in Section 12.2(a).



     “Board of Directors” means, as to any Person, the board of directors or any duly
authorized committee thereof of such Person or, if such Person is a partnership (or other
non-corporate Person), of the managing general partner or partners (or Persons serving an analogous
function) of such Person.



     “Board Resolution” means, as to any Person, a copy of a resolution certified pursuant
to an Officers’ Certificate to have been duly adopted by the Board of Directors of such Person, and
to be in full force and effect, and, if required hereunder, delivered to the Trustee.



     “Business Day” shall have the meaning provided in Section 14.8.



     “Capital Expenditures” for any period, with respect to any Person, means the aggregate
of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to
a capital lease) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.



     “Capital Lease Obligations” means as to any Person, the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Indenture, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.



6









 





     “Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.



     “Cash Equivalents” means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case maturing within one year
from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits
or overnight bank deposits having maturities of one year or less from the date of acquisition
issued by any commercial bank organized under the laws of the United States or any state thereof
having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a
nationally recognized rating agency, and maturing within one year from the date of acquisition; (d)
repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days, with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of one year or
less from the date of acquisition backed by standby letters of credit issued by any commercial bank
satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar
funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition; (h) money market funds that (i) comply with the criteria set forth in SEC Rule
2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by
Moody’s and (iii) have portfolio assets of at least $5,000,000,000; (i) debt securities of an
issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a
nationally recognized rating agency; or (j) solely with respect to any Foreign Subsidiary, in
addition to the investments described in clauses (a) through (i) of this definition, any investment
of the type described in clause (a) of this definition issued or unconditionally guaranteed by any
sovereign nation in which such Foreign Subsidiary conducts any operations, any investment of the
type and maturity described in clause (b) of this definition issued by any commercial bank
organized under the laws of any country in which such Foreign Subsidiary conducts any operations,
any investment of the type and maturity described in clause (c) or clause (e) of this definition
that has ratings issued by any internationally recognized rating agency equivalent to those set
forth in such clause and any investment of the type described in clause (g) of this definition that
satisfies the requirements of any of the other investments described in this clause (j).



     “Casualty” with respect to any Collateral, means loss of, damage to or destruction of
all or any part of such Collateral.



     “Change of Control” means the occurrence of any one of the following events after the
Effective Date:



7









 






     (a) at any time any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) other than Permitted Holders shall become the “beneficial owner”
(as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
more than 50% of the aggregate outstanding Class A Common Stock and Class B Common Stock; or




     (b) the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a whole to any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act); or




     (c) the adoption by the stockholders of the Company of a plan or proposal for the
liquidation or dissolution of the Company; or




     (d) at any time during which Thornwood holds any Class A Common Stock, (i) the
aggregate amount of Class A Common Stock held by Thornwood shall be less than 66 2/3% of the
aggregate amount of Class A Common Stock held by Thornwood on the Effective Date and (ii) a
Person or group (other than the Permitted Holders) shall be the beneficial owner of at least
35% of the aggregate outstanding Class A Common Stock and Class B Common Stock; or




     (e) at any time (i) the majority of the seats on the Board of Directors of the Company
is occupied by Persons who were neither (x) nominated or appointed by the Board of Directors
of the Company as of the Effective Date nor (y) appointed or nominated by directors
described in clause (x) and (ii) a Person or group (other than the Permitted Holders) shall
be the beneficial owner of at least 35% of the aggregate outstanding Class A Common Stock
and Class B Common Stock.



     For the avoidance of doubt, in no event shall any direct or indirect transfer of any Class A
Common Stock or any other Capital Stock of the Company, by Thornwood or any of its Affiliates to
any Affiliate of Thornwood or to Thornwood, give rise to or be deemed a “Change of Control”
hereunder.



     “Class A Common Stock” means the Class A Common Stock, par value $0.01 per share, of
the Company.



     “Class B Common Stock” means the Class B Common Stock, par value $0.01 per share, of
the Company.



     “Collateral” means all property of the Company and its Subsidiaries, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security Document.



     “Collateral Agreement” means the Collateral Agreement to be executed and delivered by
the Company and each Guarantor, substantially in the form of Exhibit E.



     “Collateral Proceeds Amount” shall have the meaning set forth in Section 4.12(iii).



8









 





     “Collateral Trust Agreement” means a Collateral Trust Agreement to be executed and
delivered by the Company, each Guarantor and the Collateral Trustee, substantially in the form of
Exhibit C.



     “Collateral Trustee” means Citibank, N.A., in its capacity as collateral trustee under
the Collateral Trust Agreement, together with any of its successors.



     “Company” means the party named as such in this Indenture until a successor replaces
it pursuant to this Indenture and thereafter means such successor.



     “Company Request” means any written request signed in the name of the Company by any
two of the following: the Chief Executive Officer; the President; any Vice President; the Chief
Financial Officer; the Treasurer; or the Secretary or any Assistant Secretary (but not both the
Secretary and any Assistant Secretary) of the Company.



     “Company Voluntary Arrangements” means, collectively, (a) the proposals dated June 23,
2006 for company voluntary arrangements in respect of T&N Limited, a company incorporated in
England and Wales and a Subsidiary of the Company, and forty-eight other U.K. Subsidiaries which
are Group Members, and (b) the proposals dated June 23, 2006 for company voluntary arrangements in
respect of Federal-Mogul Global Growth Limited, a company organized under the laws of England, and
F-M UK Holding Limited, a company organized under the laws of England, which proposals in each case
became effective in accordance with the laws of England and Wales on October 11, 2006.



     “Condemnation” means any taking of the Collateral or any part thereof, in or by
condemnation, expropriation or similar proceeding, eminent domain proceedings, seizure or
forfeiture, pursuant to any law, general or special, or by reason of the temporary requisition of
the use or occupancy of the Collateral, or any part thereof, by a Governmental Authority.



     “Condemnation Proceeds” means any awards, proceeds, payment or other compensation
arising out of a Condemnation less any and all payments made to the Collateral Trustee, the Senior
Loan Agent and the Exit Facility Agent under the Security Documents and the Collateral Agreement.



     “Confirmation Order” means that certain order confirming the Reorganization Plan
pursuant to applicable sections of the Bankruptcy Law entered by the Bankruptcy Court on November
8, 2007 and affirmed by the District Court on November 14, 2007.



     “Consolidated Amortization” means, for any period, the aggregate amount of scheduled
payments required to be made during such period on account of principal of Indebtedness of Group
Members (including without limitation, scheduled principal payments in respect of the term loans
under the Senior Loan Agreement and the Exit Facility Agreement and payments of revolving loans
accompanying scheduled reductions of the corresponding commitments, but excluding (x) any scheduled
principal payments in respect of Specified Indebtedness and (y) any final scheduled principal
payment in respect of Indebtedness (other than Specified Indebtedness); provided that for
purposes of calculating Consolidated Amortization for any period of four fiscal quarters which
includes the final scheduled principal payment of any such Indebtedness, Consolidated Amortization
shall be deemed to include an amount equal to the scheduled



9









 







principal payment immediately preceding such date of final scheduled principal payment in lieu
of the final scheduled principal payment).



     “Consolidated Debt Service Coverage Ratio” means with respect to any Person, on the
last day of the relevant four fiscal quarter period, the ratio of (a) the aggregate amount of
Consolidated EBITDA of such Person for the four full fiscal quarters immediately preceding the date
of the transaction (the “Transaction Date”) giving rise to the need to calculate the Consolidated
Debt Service Coverage Ratio (such four full fiscal quarter period being referred to herein as the
“Four Quarter Period”), less the aggregate amount actually paid by such Person and its
Subsidiaries during such period on account of Capital Expenditures (excluding the principal amount
of Indebtedness incurred in connection with such Capital Expenditures and any such Capital
Expenditures financed with the proceeds of any “Reinvestment Deferred Amount” (as defined in the
Senior Loan Agreement as in effect on the date hereof) or Positive EBITDA Variance) to (b) the sum
of (i) Consolidated Interest Expense for the Four Quarter Period ending on such day, (ii)
Consolidated Amortization of the Company for the Four Quarter Period ending on such day and (iii)
the aggregate amount of dividends paid on any class of the Company’s Capital Stock during the Four
Quarter Period ending on such day (collectively, “Consolidated Fixed Charges”). In addition to and
without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and
“Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the
period of such calculation to, without duplication, (a) the incurrence of any Indebtedness of such
Person or any of its Subsidiaries (and the application of the net proceeds thereof) during the
period commencing on the first day of the Four Quarter Period to and including the Transaction Date
(the “Reference Period”), including, without limitation, the incurrence of the Indebtedness giving
rise to the need to make such calculation (and the application of the net proceeds thereof), as if
such incurrence (and application) occurred on the first day of the Four Quarter Period (it being
understood that with respect to Indebtedness incurred under a revolving facility used primarily to
finance working capital, the average principal amount outstanding during the Reference Period shall
be deemed to be the amount incurred during the Reference Period), and (b) any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make
such calculation as a result of such Person or one of its Subsidiaries (including any Person who
becomes a Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being
liable for Acquired Indebtedness) occurring during the Four Quarter Period, as if such Asset Sale
or Asset Acquisition occurred on the first day of the Four Quarter Period. Furthermore, in
calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the
numerator) of this “Consolidated Debt Service Coverage Ratio,” (i) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue
to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness in effect on the Transaction Date; and (ii) if interest
on Indebtedness actually incurred on the Transaction Date may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered
rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to
have been in effect during the Four Quarter Period. In calculating the Consolidated Debt Service
Coverage Ratio and giving pro forma effect to the incurrence of Indebtedness during a Reference
Period, pro forma effect shall be given to use of proceeds thereof to permanently repay or retire
Indebtedness. If such Person or any of its Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, for purposes of determining the “Consolidated Debt Service Coverage
Ratio,” effect shall be given



10









 







to the incurrence of such guaranteed Indebtedness as if such Person or such Subsidiary had
directly incurred or otherwise assumed such guaranteed Indebtedness.



     “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) depreciation expense, (b) amortization
expense, (c) expenses or losses resulting from LIFO adjustments for inventory valuation in
accordance with GAAP, (d) income tax expense, (e) interest expense, (f) extraordinary losses, (g)
any non-recurring charge or restructuring charge which in accordance with GAAP is excluded from the
calculation of operating income, provided that the amounts referred to in this clause (g)
shall not exceed for any such charges which could reasonably be expected to become a cash
expenditure at any time (i) $60,000,000 in cash costs for 2007, (ii) $50,000,000 in cash costs for
2008 and (iii) $40,000,000 in cash costs for any fiscal year of the Company thereafter, (h) the
cumulative effect of any changes in accounting principles, as shown on the Company’s consolidated
statement of income for such period, (i) amounts payable under any key employee retention program
implemented during the Chapter 11 cases of the U.S. Debtors, (j) any pension contribution expense
in respect of defined benefit plans, (k) any non-recurring Chapter 11 expenses and (l) any other
non-cash charges not included in operating income or in clauses (f) or (g) and minus, to the extent
included in the statement of such Consolidated Net Income for such period, the sum of (i) interest
income, (ii) extraordinary gains, (iii) any income tax credits (to the extent not netted from
income tax expense), (iv) any income resulting from LIFO adjustments or inventory valuation in
accordance with GAAP, (v) any pension income and gains in respect of defined benefit plans, (vi)
any other non-cash income or gains, and (vii) the income, if any, attributable to Minority
Interests, all as determined on a consolidated basis. In addition, “Consolidated EBITDA” for any
period including the first four full fiscal quarters following the Effective Date shall be subject
to any adjustment with respect to such quarters required to be made by the Company’s independent
certified public accountants as a result of “fresh start” accounting, and with respect to the four
fiscal quarters prior to the Effective Date “Consolidated EBITDA” shall be so adjusted on a pro
forma basis as though the Reorganization Plan had become effective on the first day of such period.



     “Consolidated Interest Expense” means, for any period, the consolidated cash interest
expense of the Group Members for such period (but excluding any such interest expense in respect of
Specified Indebtedness and any upfront fees paid with respect to the debt financings evidenced by
the Exit Facility Agreement and the Senior Loan Agreement, each as in effect on the Effective Date,
and this Indenture), determined on a consolidated basis in accordance with GAAP, less
interest income.



     “Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Group Members, determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with any Group Member.



     “Consolidated Net Worth” means, with respect to any Person at any date, the
consolidated stockholders’ equity of such Person less the amount of such stockholders’ equity
attributable to Disqualified Capital Stock of such Person and its Subsidiaries, as determined in



11









 







accordance with GAAP; provided that Consolidated Net Worth shall not reflect any
additions or deductions resulting from foreign currency translation gains or losses.



     “Consolidated Senior Debt” means all Consolidated Total Debt other than the Notes and
Permitted Subordinated Indebtedness.



     “Consolidated Senior Leverage Ratio” means as of the last day of any period of four
consecutive fiscal quarters, the ratio of (a) Consolidated Senior Debt on such day, less the sum
of (i) $400,000,000, (ii) Indebtedness as of such day of Foreign Subsidiaries that are not
wholly-owned Subsidiaries, (iii) the aggregate amount outstanding as of such day under vendor notes
issued to certain pre-petition creditors of the Company and (iv) the aggregate amount of
unrestricted cash and Cash Equivalents of the Group Members on such day in excess of Minimum Cash
on such day to (b) Consolidated EBITDA for such period.



     “Consolidated Total Debt” means, at any date, the sum of (a) the aggregate principal
amount of all Indebtedness of the Group Members at such date, determined on a consolidated basis,
plus (b) the aggregate amount of all obligations incurred under all Qualified Securitization
Transactions by the Company or any Domestic Subsidiary (other than an Excluded Subsidiary) that
would be characterized as principal determined on a consolidated basis in accordance with GAAP if
structured as a secured lending transaction rather than as a purchase, minus (c) Specified
Indebtedness.



     “Corporate Trust Office” means the principal office of the Trustee at which at any
time its corporate trust business shall be administered, which office at the date hereof is located
at 60 Livingston Avenue, EP-MN-WS3C, St. Paul, MN, 55107-2292, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company).



     “Currency Agreement” means in respect of a Person any foreign exchange contract,
currency swap agreement or other similar agreement designed to protect such Person against
fluctuations in currency values and not for the purpose of speculation.



     “Custodian” means any receiver, trustee, assignee, liquidator or similar official
under any Bankruptcy Law.



     “Debtors” shall have the meaning as defined in the Recitals.



     “Default” means any of the events specified in Section 6.1, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been satisfied.



     “Default Notice” shall have the meaning provided in Section 12.2.



     “Deposit Account” means a demand, time, savings, passbook or like account with a bank,
savings and loan association, credit union or like organization, other than an account evidenced by
a negotiable certificate of deposit.



12









 





     “Depository” means, with respect to the Notes issued in the form of one or more Global
Notes, The Depository Trust Company or another Person designated as Depository by the Company,
which Person must be a clearing agency registered under the Exchange Act.



     “Designated Senior Debt” means (i) Indebtedness under or in respect of the Exit
Facility, (ii) Indebtedness under or in respect of the Senior Loan Agreement and (iii) Indebtedness
under or in respect of the Additional Liquidity Facility, if any, provided that the
Designated Senior Debt shall not exceed the Designated Senior Debt Limit.



     “Designated Senior Debt Limit” means, with respect to Designated Senior Debt, an
aggregate principal amount equal to $2,752,590,863.33 (A) less the amount of all mandatory
principal payments actually made in respect of term loans thereunder with Net Cash Proceeds and (B)
reduced by any required permanent repayments (which are accompanied by a corresponding permanent
commitment reduction) thereunder with Net Cash Proceeds.



     “Disclosure Statement” means the Disclosure Statement, in the form approved by the
Bankruptcy Court on June 4, 2004, and as supplemented by that certain Supplemental Disclosure
Statement Describing Fourth Amended Joint Plan of Reorganization dated February 7, 2007 (which
Supplemental Disclosure Statement was approved by the Bankruptcy Court by order entered on February
6, 2007), describing the Reorganization Plan and distributed to the parties in interest in
connection with voting on the Reorganization Plan.



     “Disinterested Director” as to any Significant Shareholder, means any member of the
board of directors of a Group Member who (a) is “disinterested” under applicable state corporate
law in a transaction with any Affiliate of such Significant Shareholder which is the subject of
such board of directors approval, and (b) would be independent and eligible to serve on an audit
committee (for purposes of Sections 303A.02 and 303A.06 of the New York Stock Exchange Listed
Company Manual, as in effect on the date hereof) of such Significant Shareholder or of any company
in which such Significant Shareholder beneficially owns 15% or more of the voting power to the
extent that would be required if such Significant Shareholder or any such company were a public
reporting company listed on the New York Stock Exchange.



     “DIP Facility” means the credit facilities provided to the Company and certain of its
Subsidiaries pursuant to the Credit and Guaranty Agreement, dated as of November 23, 2005, among
the Company, the Subsidiaries of the Company party thereto, the lenders from time to time party
thereto and Citicorp USA, Inc., as administrative agent for such lenders, as amended from time to
time, together with all instruments and other agreements entered into by any Group Member in
connection therewith.



     “Disposition” means, with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “dispose” and
“disposed of” shall have correlative meanings.



     “Disqualified Capital Stock” means any Capital Stock of the Company or any of its
Subsidiaries which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable at the option of the holder), or upon the happening of any event,
matures or is subject to mandatory redemption, pursuant to a sinking fund obligation or



13









 







otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Maturity Date of the Notes, for cash or securities constituting Indebtedness. Without
limitation of the foregoing, Disqualified Capital Stock shall also be deemed to include any
Preferred Capital Stock of the Company or a Subsidiary of the Company with respect to which, under
the terms of such Preferred Capital Stock, by agreement or otherwise, the Company or such
Subsidiary is obligated to pay current dividends or distributions in cash during the period prior
to the Maturity Date.



     “District Court” means the United States District Court for the District of Delaware
or the unit thereof having jurisdiction over the matter in question.



     “Dollars” and “$” means dollars in lawful currency of the United States.



     “Domestic Subsidiary” means any Subsidiary of the Company organized under the laws of
any jurisdiction within the United States.



     “Domestic Subsidiary Guarantees” means the collective reference to (i) the Guarantees
provided by any Domestic Subsidiary hereunder and (ii) any other Guarantee executed and delivered
by a Domestic Subsidiary Guarantor in accordance with Sections 4.22 or 4.26.



     “Domestic Subsidiary Guarantor” means each Domestic Subsidiary that provides a
Domestic Subsidiary Guarantee; as of the date of this Indenture, the Domestic Subsidiary Guarantors
are the Domestic Subsidiaries listed on Schedule 1.



     “Effective Date” means the date on which the Notes are issued, which shall be the
effective date of the Reorganization Plan.



     “Equity Proceeds” means the Net Cash Proceeds of any issuance of Capital Stock by the
Company.



     “Event of Default” means any of the events specified in Section 6.1, provided
that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.



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



     “Excluded Subsidiary” means (i) any Foreign Subsidiary and any Domestic Subsidiary
which is a Subsidiary of a Foreign Subsidiary in respect of which either (a) the pledge of more
than 66% of the Capital Stock of such Foreign Subsidiary (or, in the case of a Domestic Subsidiary
which is a Subsidiary of a Foreign Subsidiary, the pledge of any Capital Stock of such Domestic
Subsidiary) as Collateral or (b) the guaranteeing by such Subsidiary of, or the pledging of assets
by such Subsidiary to secure, the Obligations, would, in the good faith judgment of the Company,
result in adverse tax consequences to any Group Member or would be unlawful for such Subsidiary;
and (ii) FM International, LLC, so long as 66% of its Capital Stock is pledged under the Security
Documents and such entity has no operations other than holding the Capital Stock of any Foreign
Subsidiary.



14









 





     “Exit Facility” means the revolving credit and/or other facility provided to one or
more Group Members on the Effective Date pursuant to the Exit Facility Agreement, and any
refinancing, replacement, refunding, renewal or extension thereof.



     “Exit Facility Agent” means Citicorp USA, Inc., in its capacity as administrative
agent under the Exit Facility Agreement, together with any of its successors.



     “Exit Facility Agreement” means the Term Loan and Revolving Credit Agreement
substantially in the form of Exhibit J hereto, dated as of the date hereof, among the Company, the
lenders from time to time party thereto and the Exit Facility Agent, together with all instruments
and other agreements entered into by any Group Member in connection therewith.



     “Exit Facility Indebtedness” means the following obligations, whether outstanding on
the Effective Date or thereafter incurred: all Indebtedness and other monetary obligations of the
Company or any Subsidiary of the Company under or in respect of the Exit Facility or any Interest
Rate Agreement, Currency Agreement or Swap Agreement related to the Exit Facility or any “Cash
Management Secured Obligations” (as defined in the Collateral Agreement), whether for principal,
interest (including interest accruing after the filing of a petition by or against the Company or
any Subsidiary of the Company under any Bankruptcy Laws, whether or not such interest is allowed as
a claim after such filing in any proceeding under such law), fees, expenses, indemnification or
otherwise.



     “Factoring Arrangements” means any arrangements between an Excluded Subsidiary and a
third party (other than an Affiliate) under which the Receivables of such Excluded Subsidiary are
factored on a non-recourse basis.



     “Factoring Basket” means, on any date, an amount equal to the greater of (i)
$400,000,000 and (ii) $400,000,000 times the Factoring Growth Rate on such date.



     “Factoring Growth Rate” means, on any date, the ratio of (i) the collective sales of
the Group Members outside of the United States for the period of twelve consecutive months most
recently ended prior to such date and for which such figure has been reported by the Company to the
Trustee, expressed at the Company’s accounting rate as in effect on the last day of such period
(which accounting rate shall be determined by the Company in good faith consistent with the manner
in which such rate has been determined by the Company prior to the Effective Date) to (ii)
$3,000,000,000.



     “F-M Canada” means Federal-Mogul Canada Limited, a Canadian corporation.



     “Fixtures” means all “fixtures” as such term is defined in the UCC, now owned or
hereafter acquired by the Company or any of its Subsidiaries.



     “Foreign Credit Facilities” means credit facilities to be made available to certain
Foreign Subsidiaries of the Company to fund foreign operations; provided that such credit
facilities are not secured by any domestic assets of the Company or any Guarantor.



15









 





     “Foreign Pledge Agreements” mean the collective reference to (i) the pledge agreements
described on Schedule 2 and (ii) any other pledge agreement pursuant to which shares of Foreign
Subsidiaries may be pledged from time to time.



     “Foreign Subsidiary” means any Subsidiary of the Company that is not a Domestic
Subsidiary.



     “Foreign Subsidiary Guarantees” means the collective reference to (i) the Foreign
Subsidiary Guarantee substantially in the form of Exhibit M to be executed by the Foreign
Subsidiary Guarantors as of the date hereof, and (ii) any other Guarantee executed and delivered by
a Foreign Subsidiary Guarantor in accordance with Sections 4.22 or 4.26.



     “Foreign Subsidiary Guarantor” means each Foreign Subsidiary that is a party to a
Foreign Subsidiary Guarantee; as of the date of this Indenture, the Foreign Subsidiary Guarantors
are the Foreign Subsidiaries listed on Schedule 7.



     “GAAP” means generally accepted accounting principles consistently applied as in
effect in the United States from time to time; provided, however, that for purposes
of computing the Consolidated Debt Service Coverage Ratio or the Consolidated Senior Leverage
Ratio, such terms shall be construed in accordance with GAAP as in effect on the date of this
Indenture applied on a basis consistent with the application used in the Company’s audited
financial statements for the fiscal year ended December 31, 2006.



     “General Investment Basket” means at any date, an amount equal to (a) $250,000,000
minus (b) the aggregate amount of Investments made pursuant to clause (xxvi) of the definition of
“Permitted Investments” on or prior to such date, plus (c) the aggregate amount of distributions of
cash and Cash Equivalents with respect to any Investment made pursuant to clause (xxvi) of the
definition of “Permitted Investments” that have been received on or prior to such date by the Group
Member that holds such Investment.



     “Global Note” means a Note evidencing all or a part of the Notes issued to and
registered in the name of the Depository and bearing the Global Note Legend prescribed in Exhibit
H.



     “Global Note Legend” means the legend set forth in Exhibit H, which is required to be
placed on all Global Notes issued under this Indenture.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).



     “Group Members” means collectively, the Company and it Subsidiaries.



     “Guarantee” means, individually, any guarantee of payment of the Obligations of the
Company under or with respect to the Notes by a Guarantor pursuant to the terms of this Indenture
and any supplemental indenture hereto or a Foreign Subsidiary Guarantee, and, collectively, all
such Guarantees.



16









 





     “Guarantee Obligation” means, as to any Person (the “guaranteeing person”),
any obligation, including a reimbursement, counterindemnity or similar obligation, of the
guaranteeing Person that guarantees or in effect guarantees or which is given to induce the
creation of a separate obligation by another Person (including any bank under any letter of credit)
that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations
(the “primary obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Company in good faith.



     “Guaranteed Note Obligations” shall have the meaning set forth in Section 11.1.



     “Guarantor” means each Domestic Subsidiary Guarantor and each Foreign Subsidiary
Guarantor.



     “Guarantor Senior Debt” means, with respect to a Guarantor, any Guarantee Obligation
in respect of Designated Senior Debt.



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



     “Incur” means, with respect to any Indebtedness or other obligation of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become,
directly or indirectly, liable in respect of such Indebtedness or other obligation or the
recording, as required pursuant to GAAP or otherwise, of any such Indebtedness or other obligation
on the balance sheet of such Person (and “incurrence,” “incurred,” “incurable,” and “incurring”
shall have meanings correlative to the foregoing). Any Indebtedness or Capital Stock 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 Person at the time it becomes a
Subsidiary. Indebtedness consisting of reimbursement obligations in respect of a letter of credit
will be deemed to be incurred when the letter of credit is issued or renewed.



17









 





     “Indebtedness” shall mean, at any time and with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than (x) current trade
payables incurred in the ordinary course of such Person’s business and (y) property, including
inventory, and services purchased, and expense accruals (other than trade payables) and deferred
compensation items arising, in each case, in the ordinary course of such Person’s business), (c)
all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all indebtedness created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are limited to repossession or
sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of
such Person, contingent or otherwise, as an account party or applicant under or in respect of
acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of
all redeemable Preferred Capital Stock of such Person which is mandatorily redeemable prior to the
Maturity Date, (h) all Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above or (j) below, (i) all obligations of the kind referred
to in clauses (a) through (h) above or (j) below secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation, and (j) all obligations of such Person
in respect of Swap Agreements. The Indebtedness of any Person (i) shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity solely to the extent such Indebtedness is required to be reflected on
the balance sheet of such Person in accordance with GAAP and (ii) shall not include in any event
any Joint Venture Put Obligation. For the avoidance of doubt, Factoring Arrangements shall not
constitute Indebtedness.



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



     “Insurance Proceeds” means any payment, proceeds or other amounts received at any time
under any insurance policy as compensation in respect of a Casualty, less any and all payments made
to the Trustee, the Collateral Trustee, the Senior Loan Agent and the Exit Facility Agent under the
Collateral Agreement, provided that business interruption insurance proceeds shall not
constitute Insurance Proceeds.



     “Intellectual Property” means the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.



     “Intercompany Basket” means, at any date, an amount equal to (a) $500,000,000, minus
(b) the aggregate outstanding principal amount on such date of Intercompany Loans made pursuant to
clause (xvii)(b) of the definition of “Permitted Investments,” minus (c) the aggregate



18









 







amount of Investments (other than Intercompany Loans) made pursuant to clause (xvii)(b) of the
definition of “Permitted Investments” on or prior to such date, minus (d) the aggregate amount of
operating leases (measured on the basis of fair market value of the assets subject thereto)
outstanding pursuant to clause (xii)(c) of the definition of “Asset Sale” plus (e) the aggregate
amount of distributions in cash and Cash Equivalents with respect to any Investment (other than
Intercompany Loans) made pursuant to clause (xvii)(b) of the definition of Permitted Investments
that have been received on or prior to such date by the Group Member that holds such Investment.
Notwithstanding the foregoing, to the extent that an Intercompany Loan or an Investment is made in
a Subsidiary that uses the proceeds of such Intercompany Loan or Investment, substantially
contemporaneously with the making of such Intercompany Loan or Investment, to make an Investment in
a Joint Venture pursuant to clause (xiv)(b) of the definition of “Permitted Investments”, such
Intercompany Loan or Investment shall not reduce the amount of the Intercompany Basket, but shall
reduce the amount of the Joint Venture Basket in the amount of such Intercompany Loan or
Investment.



     “Intercompany Basket Sublimit” means, at any date, an amount equal to (a)
$350,000,000, minus (b) the aggregate amount of Investments (other than Intercompany Loans) made
pursuant to clause (xvii)(b) of the definition of Permitted Investments on or prior to such date,
plus (c) the aggregate amount of distributions in cash and Cash Equivalents with respect to any
Investment (other than Intercompany Loans) made pursuant to clause (xvii)(b) of the definition of
Permitted Investments that have been received on or prior to such date by the Group Member that
holds such Investment.



     “Intercompany Loan” means any Indebtedness for borrowed money owed by any Group Member
to any other Group Member.



     “Intercompany Loan Notes” means (a) that certain note dated June 11, 1999 and payable
by Federal-Mogul, S.A., a French company, to AE International Ltd. in the original principal amount
of 142,404,240 French francs, (b) that certain note dated August 31, 1998 and payable by
Federal-Mogul, S.A. to T&N International Ltd. in the original principal amount of 488,163,908
French francs, (c) that certain note dated August 31, 1998 and payable by Federal-Mogul, S.A. to AE
International Ltd in the original principal amount of 904,841,256 French francs, (d) that certain
note dated July 8, 1998 and payable by Federal-Mogul Holding Deutschland GmbH, a German company, to
AE International Ltd in the original principal amount of 126,979,412 Deutschmarks, (e) that certain
note dated July 8, 1998 and payable by Federal-Mogul Holding Deutschland GmbH to T&N International
Ltd in the original principal amount of 611,020,588 Deutschmark, and (f) that certain note dated
May 22, 2001 and payable by Federal Mogul S.p.A., an Italian company, to T&N International Ltd in
the original principal amount of €111,627,744.



     “Intercompany Loan Owed to U.K. Subsidiaries” means any Intercompany Loan of the
Company or any of its Subsidiaries other than the U.K. Subsidiaries owing to any U.K. Subsidiary
and outstanding on the Effective Date, as set forth on Schedule 6.



     “Intercreditor Agreement” means the Intercreditor Agreement dated as of the date
hereof among the Exit Facility Agent, the Senior Loan Agent, the Trustee, the Collateral Trustee,
the Company and each of the Guarantors party thereto, substantially in the form of Exhibit I.



19









 





     “Interest” when used with respect to any Note, means the amount of all interest
accruing on such Note, including all interest accruing subsequent to the occurrence of any events
specified in Sections 6.1(7) and (8) or which would have accrued but for any such event.



     “Interest Payment Date” means each Quarterly Interest Payment Date and each PIK
Interest Payment Date, as defined in paragraph 1 of the reverse side of the Notes.



     “Interest Rate Agreement” means, for any Person, any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar agreement designed to
protect the party indicated therein against fluctuations in interest rates.



     “Investment” means, with respect to any Person, directly or indirectly, (i) any
advance, Receivables (other than Receivables arising in the ordinary course of business, including
Receivable arising in the ordinary course of business and acquired as part of the assets acquired
by the Company in connection with an acquisition of assets which is otherwise permitted by the
terms of this Indenture), loan or capital contribution to any other Person (by means of transfers
of property to others, payments for property or services for the account or use of others or
otherwise), (ii) the purchase of any stock, bonds, notes, debentures, partnership or joint venture
interests or other securities of any other Person, (iii) the acquisition, by purchase or otherwise,
of all or substantially all of the business or stock or other evidence of beneficial ownership of,
any other Person, (iv) the guarantee or assumption of the Indebtedness of any other Person (except
for an assumption of Indebtedness for which the assuming Person receives consideration with a fair
market value at least equal to the principal amount of the Indebtedness assumed), (v) the
designation of a Subsidiary as an Unrestricted Subsidiary and (vi) all other items that would be
classified as investments on a balance sheet of such Person prepared in accordance with GAAP.
Investments shall exclude extensions of trade credit on commercially reasonable terms in accordance
with normal trade practices.



     “Joint Venture” means each Affiliate of the Company listed on Schedule 3 and any other
Person not a Subsidiary in which any Group Member obtains an ownership interest as permitted by the
terms of this Indenture.



     “Joint Venture Basket” shall mean, at any date, an amount equal to (a) $250,000,000
minus (b) the aggregate amount of Investments made pursuant to clause (xiv)(b) of the definition of
“Permitted Investments” after the Effective Date and on or prior to such date minus (c) the
aggregate amount of operating leases (measured on the basis of the fair market value of the assets
subject thereto) outstanding pursuant to clause (xii)(b) of the definition of “Asset Sales” after
the Effective Date and on or prior to such date plus (d) the aggregate amount of distributions in
cash and Cash Equivalents with respect to any Investment made pursuant to clause (xiv)(b) of the
definition of “Permitted Investments” that have been received after the Effective Date and on or
prior to such date by the Group Member that holds such Investment.



     “Joint Venture Put Obligation” means any obligation of any Group Member (a) to
purchase any Capital Stock of any Person that is a Joint Venture on the Effective Date, which
Capital Stock is not owned by a Group Member on the Effective Date, (b) to purchase any Capital
Stock of any Person that is a Joint Venture on the Effective Date, which Capital Stock is not owned
by a Group Member on the Effective Date and where such obligation to purchase



20









 







Capital Stock arises after the Effective Date or (c) to purchase any Capital Stock of any
Joint Venture formed after the Effective Date, which Capital Stock is not owned by a Group Member
on the date of formation of such new Joint Venture, so long as the aggregate amount of obligations
described in the preceding clause (b) or (c) for any single such Joint Venture shall not exceed
$50,000,000 at the time of determination thereof (with the amount of any non-cash obligations to be
estimated by the Company in good faith).



     “Lien” means, any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).



     “Legal Holiday” shall have the meaning provided in Section 14.8.



     “Loss Event” means a Condemnation or Casualty involving an actual or constructive
total loss or agreed or compromised actual or constructive total loss of all or substantially all
of any property constituting Collateral, except where the Company reasonably concludes that
restoration of such property can be made in accordance with this Indenture and elects to do so in
an Officers’ Certificate delivered to the Trustee within 90 days of the relevant Condemnation or
Casualty.



     “Maturity Date” means December 27, 2018.



     “Minimum Cash” means at any date, an amount equal to the lesser of (a) the aggregate
amount of unrestricted cash and Cash Equivalents held by Group Members at such date, and (b)
$160,000,000.



     “Minority Interest” means any shares of stock of any class of a Subsidiary of the
Company (other than directors’ qualifying shares if required by law) that are not owned by Company
or one of its Subsidiaries; Minority Interest shall be valued in accordance with GAAP.



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



     “Mortgaged Property” means the real properties listed on Schedule 4, as to which the
Collateral Trustee, for the benefit of the Noteholders and other secured parties referred to in the
Collateral Agreement, shall be granted a Lien pursuant to the Mortgages.



     “Mortgages” means each of the mortgages and deeds of trust made by the Company or any
of its Subsidiaries in favor of the Collateral Trustee, for the benefit of the Noteholders and the
other secured parties referred to therein, substantially in the form of Exhibit F (with such
changes thereto as shall be advisable or are customary under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded).



     “Net Cash Proceeds” means (a) in connection with any Asset Sale (other than the
liquidation of a Joint Venture or disposition of Notes pursuant to a Permitted Open Market
Repurchase) or any Recovery Event or any transaction that would constitute an Asset Sale but for
clause (xx) of the definition thereof, the gross proceeds thereof in the form of cash and Cash



21









 







Equivalents (including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise,
but only as and when received, and, with respect to any Asset Sale consisting of the Disposition of
all or substantially all of the assets of a business or business unit of the Company or any of its
Subsidiaries, net proceeds from the liquidation or sale of Receivables or inventory of such
business or business unit) of such Asset Sale or Recovery Event, net of (i) attorneys’ fees,
accountants’ fees, investment banking fees, (ii) amounts required to be applied to the repayment of
(x) Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject
of such Asset Sale or Recovery Event (other than any Lien securing the “Third Priority Obligations”
referred to in the Intercreditor Agreement) and (y) solely if such Asset Sale or Recovery Event is
consummated by a Foreign Subsidiary, any other Indebtedness permitted hereunder, including without
limitation any Foreign Credit Facility and any Indebtedness of any parent or Subsidiary of such
Foreign Subsidiary, but excluding any Indebtedness owed to any Group Member, (iii) other customary
fees and expenses actually incurred in connection therewith and (iv) taxes paid or reasonably
estimated to be payable as a result thereof and as a result of distributing such proceeds to the
Company (after taking into account any available tax credits or deductions and any tax sharing
arrangements), (b) in connection with any issuance or sale of Capital Stock to a Person that is not
a Group Member or any incurrence of Indebtedness to a Person that is not a Group Member, the cash
proceeds received from such issuance or incurrence, net of (i) attorneys’ fees, accountants’ fees,
investment banking fees, underwriting discounts and commissions, (ii) other customary fees and
expenses actually incurred in connection therewith, (iii) taxes paid or reasonably estimated to be
payable as a result of distributing such proceeds to the Company (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (iv) amounts required to
be applied to the repayment of Indebtedness under the Exit Facility Agreement as in effect on the
date hereof, (c) in connection with the liquidation of a Joint Venture, the gross proceeds thereof
in the form of cash and Cash Equivalents received by any Group Member in excess of the fair market
value of the aggregate of all Investments made in such Joint Venture by any Group Member at any
time and net of (i) attorneys’ fees, accountants’ fees and investment banking fees, (ii) amounts
required to be applied to the repayment of (x) Indebtedness secured by a Lien expressly permitted
hereunder on any asset that is the subject of such liquidation (but excluding, in any event, any
Lien securing the “Third Priority Obligations” referred to in the Intercreditor Agreement) and (y)
solely if such liquidation is consummated by a Foreign Subsidiary, any other Indebtedness permitted
hereunder, including without limitation any Foreign Credit Facility and any Indebtedness of any
parent or Subsidiary of such Foreign Subsidiary, but excluding any Indebtedness owed to any Group
Member, (iii) other customary fees and expenses actually incurred in connection therewith and (iv)
taxes paid or reasonably estimated to be payable as a result thereof and as a result of
distributing such proceeds to the Company (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (d) in connection with the disposition of Notes
purchased by any Group Member pursuant to a Permitted Open Market Purchase, an amount equal to the
purchase price paid by such Group Member pursuant to such Permitted Open Market Purchase (whether
or not the aggregate amount of proceeds thereof is equal to such purchase price). Notwithstanding
the foregoing, the “Net Cash Proceeds” of a Foreign Subsidiary shall not include any amounts to the
extent such amount may not be distributed (by way of dividends, intercompany loans or otherwise) to
the Company or a Domestic Subsidiary because doing so would (1) violate legal restrictions binding



22









 







upon such Foreign Subsidiary, (2) violate contractual restrictions contained in agreements
with third parties (other than Affiliates) entered into in good faith and binding upon such Foreign
Subsidiary or (3) result in material adverse tax consequences to the Company.



     “Not Otherwise Applied” means, on any date, with respect to any amount of Equity
Proceeds or Permitted Subordinated Indebtedness Proceeds, that such amount was not applied as set
forth in clauses (i) through (iii) of the definition of such term in the Senior Loan Agreement as
in effect on the date hereof.



     “Note Documents” mean this Indenture, the Security Documents, the Collateral Trust
Agreement, the Registration Rights Agreement, the Notes, the Foreign Subsidiary Guarantees and any
amendment, waiver, supplement or other modification to any of the foregoing.



     “Notes” means the Senior Subordinated Third Priority Secured Notes due 2018, being the
securities that are issued under this Indenture, as amended or supplemented from time to time
pursuant to this Indenture, including, without limitation, any PIK Notes issued in respect of
Notes, any increase in the principal amount of outstanding Notes as a result of a PIK Payment and
any Notes issued in accordance with Section 2.7 hereof.



     “Obligations” mean the unpaid principal of and interest on (including interest
accruing after the maturity of the Notes and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to
the Company, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Notes and all other obligations and liabilities of the Company to the Trustee, the
Collateral Trustee (to the extent solely related to the Notes) or to any Noteholder, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Indenture, any other Note Document or
any other document made, delivered or given in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including
all fees, charges and disbursements of counsel to the Trustee, the Collateral Trustee (to the
extent solely related to the Notes) or to any Noteholder that are required to be paid by the
Company pursuant hereto) or otherwise.



     “Officers” means, with respect to any Person, the Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer, the Chief Accounting Officer and any
Treasurer of such Person.



     “Officers’ Certificate” means, with respect to any Person, a certificate signed by the
Chief Executive Officer, the President or any Vice President and the Chief Financial Officer, the
Chief Accounting Officer or any Treasurer of such Person (or, in the case of a Person that is a
partnership (or other non-corporate Person), by a general partner (or analogous individuals) of
such Person in such capacity) that shall comply with applicable provisions of this Indenture.



     “Opinion of Counsel” means a written opinion from legal counsel, who may be an
employee of the Company.



     “Organizational Documents” shall mean (i) with respect to any corporation, its
certificate or articles of incorporation, as amended, and its by-laws, as amended, (ii) with
respect



23









 







to any limited partnership, its certificate of limited partnership or formation, as amended,
and its partnership agreement, as amended, (iii) with respect to any general partnership, its
partnership agreement, as amended, (iv) with respect to any limited liability company, its
certificate of formation or articles of organization, as amended, and its operating agreement, as
amended, if any, and (v) with respect to any unlimited liability company, its certificate of
formation, as amended, and its memorandum and articles of association, as amended, if any. In the
event any term or condition of this Indenture or any other Note Document requires any
Organizational Document to be certified by a secretary of state of similar governmental official,
the reference to any such “Organizational Document” shall only be to a document of a type
customarily certified by such governmental official.



     “Other Unsecured Claims” means the allowed unsecured claims under the Reorganization
Plan.



     “Permitted Holders” means Federal-Mogul U.S. Asbestos Personal Injury Trust and
Thornwood, which are holders of Class A Common Stock and Class B Common Stock of the Company on the
Effective Date pursuant to the Reorganization Plan.



     “Permitted Investments” means, for any Person, Investments made on or after the date
of this Indenture consisting of:




     (i) Investments in Cash Equivalents;




     (ii) intercompany Investments (a) by (i) any Group Member in the Company or any
Person that, prior to such Investment, is a Guarantor and (ii) any Subsidiary that
is not a Guarantor in any other Subsidiary and (b) consisting of Intercompany Loans
and other intercompany transactions permitted by Section 4.10;




     (iii) Investments in any Person, if (a) as a result of such Investment (1) such
Person becomes a Wholly-Owned Subsidiary of the Company or (2) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly-Owned Subsidiary of the Company and (b) after giving effect to such
Investment the Company is in compliance with Sections 4.18 and 5.1 hereof;




     (iv) Investments represented by Receivables created or acquired in the ordinary
course of business;




     (v) loans and advances to employees of the Company and its Subsidiaries in the
ordinary course of business and consistent with the past practice of the Company and
its Subsidiaries (including, without limitation, for travel, entertainment and
relocation expenses), which loans and advances, in the aggregate do not exceed
$5,000,000 at any time outstanding;




     (vi) Investments under or pursuant to Interest Rate Agreements, Currency
Agreements and Swap Agreements permitted under clause (ix) of the second paragraph
of Section 4.10;



24









 






     (vii) an investment that is made by the Company or a Subsidiary thereof in the
form of any Capital Stock, Indebtedness or securities that are issued by any Person
solely as partial consideration for the consummation of an Asset Sale that is
otherwise permitted under Section 4.12 hereof;




     (viii) Investments in the Notes;




     (ix) (a) Investments existing on the Effective Date, (b) equity Investments of
any Group Member in any other Group Member and arising solely as a result of the
recharacterization as an equity investment of any Intercompany Loan permitted by
Section 4.10 and (c) Investments in the form of notes issued by the “Trust” (as
defined in the Reorganization Plan) to the Company pursuant to the Reorganization
Plan, as follows: (x) a note in the face amount of $125,000,000 issuable pursuant to
Section 8.3.5 of the Reorganization Plan and (y) a note in the face amount of
$140,000,000 issuable pursuant to Section 8.22 of the Reorganization Plan;




     (x) Investments provided for in the Reorganization Plan;




     (xi) (a) Investments in any Securities received in satisfaction or partial
satisfaction thereof from financially troubled account debtors consistent with the
past practices of the Company and its Subsidiaries and (b) deposits, prepayments and
other credits to suppliers made in the ordinary course of business consistent with
the past practices of the Company and its Subsidiaries;




     (xii) any Investment by the Company or a Wholly-Owned Subsidiary of the Company
in a Securitization Entity or any Investment by a Securitization Entity in any other
Person in connection with a Qualified Securitization Transaction; provided
that any Investment in a Securitization Entity is in the form of a Purchase Money
Note or an equity interest;




     (xiii) guarantees of Indebtedness or other obligations of the Company or any of
its Subsidiaries issued in accordance with Section 4.10;




     (xiv) (a) Investments consisting of the Capital Stock of any Person acquired
pursuant to any Joint Venture Put Obligation and (b) Investments (other than
Investments described in clause (a)) in Joint Ventures, including without
limitation, Investments in new Joint Ventures, the purchase of ownership interests
in Joint Ventures from Persons that are not Group Members and increases in the
ownership interest of any Group Member in Joint Ventures in an aggregate outstanding
amount not to exceed at any date the Joint Venture Basket in effect on such date
(calculated after giving effect to all proposed Investments to be made on such date
pursuant to this clause (xiv(b));




     (xv) Investments by any Group Member in existing or potential suppliers and
customers from whom the Company reasonably expects to obtain a material commercial
benefit in an aggregate amount (valued at cost) not to exceed $25,000,000 at any one
time outstanding on or after the Effective Date;



25









 






     (xvi) Investments by any Group Member necessary to effect the Tax
Restructuring;




     (xvii) (a) Investments by the Company or any Subsidiary in any Excluded
Subsidiary existing on the Effective Date, (b) additional Investments by the Company
or any Subsidiary in any Excluded Subsidiary in an aggregate outstanding amount not
to exceed on any date the Intercompany Basket in effect on such date (calculated
after giving effect to all proposed Investments to be made on such date pursuant to
this clause (xvii)(b)), provided that the aggregate amount of Investments
(other than Intercompany Loans) made pursuant to this clause (xvii)(b) and
outstanding on any date shall not exceed the Intercompany Basket Sublimit on such
date and (c) Investments in a Foreign Subsidiary for the purpose of complying with
local statutory capitalization requirements in such Foreign Subsidiary’s host
jurisdiction;




     (xviii) (a) Investments in assets useful in the business of the Group Members
made by any Group Member with the proceeds of any Collateral Proceeds Amount as
permitted under Section 4.12 and (b) other Permitted Net Cash Proceeds
Reinvestments;




     (xix) Investments by any Group Member of any Restricted Payment received by
such Person that consists of equity interests in a Subsidiary; provided that
if the initial payor of any such Restricted Payment is a Guarantor, then the
ultimate recipient of such Restricted Payment shall also be a Guarantor;




     (xx) any “Permitted Acquisition” under and as defined in the Senior Loan
Agreement;




     (xxi) Investments made pursuant to Section 4.14(c)(viii);




     (xxii) Investments by the Company in any Subsidiary consisting of the issuance
of letters of credit under the Exit Facility Agreement (and the incurrence by the
Company of Indebtedness thereunder with respect thereto) to support obligations of
such Subsidiary;




     (xxiii) Investments by a U.K. Subsidiary in another U.K. Subsidiary in
connection with the Company Voluntary Arrangements;




     (xxiv) Investments by the Company or any of its Subsidiaries in connection with
the Anticipated Japanese Consolidation in an amount not to exceed $10,000,000;




     (xxv) Investments not otherwise permitted under paragraphs (i) through (xxiv)
so long as, prior to the making of any such Investments, the Company shall have
delivered to the Trustee an Officer’s Certificate, certifying that such Investment
has been approved by a majority of the Board of Directors and that the majority of
the Board of Directors has determined that such Investment is being made with the
intent to pursue a strategic transaction with the



26









 







Person with respect to which such Investment is being made; it being understood
that at any time at which any Investments made pursuant to this paragraph (xxv) with
respect to any Person constitutes an Asset Acquisition, such Asset Acquisition must
also constitute a Permitted Acquisition as defined in the Senior Loan Agreement;




     (xxvi) Investments not otherwise permitted under the foregoing paragraphs (i)
through (xxv), but excluding Investments in Joint Ventures or in Excluded
Subsidiaries, in an aggregate outstanding amount not to exceed on any date the
General Investment Basket in effect on such date; and




     (xxvii) Investments not otherwise permitted under the foregoing paragraphs (i)
through (xxvi) in an aggregate outstanding amount not to exceed on any date the
Proceeds Investment Basket in effect on such date.



     “Permitted Liens” means, without duplication,




     (i) Liens securing Senior Loan Facility Indebtedness, Exit Facility
Indebtedness and Additional Liquidity Facility Indebtedness permitted to be incurred
under clause (iii) of the second paragraph of Section 4.10 (including refinancings,
replacements, refundings, renewals or extensions of the foregoing);




     (ii) Liens existing on the Effective Date;




     (iii) Liens in favor of the Company or any Subsidiary thereof, provided
that if such Liens are on any Collateral as defined in the Collateral Agreement,
then such Liens are either collaterally assigned to the Trustee or subordinated to
the Lien in favor of the Collateral Trustee;




     (iv) Liens on property of a Person existing at the time such Person becomes a
Subsidiary of, or is acquired by, merged into or consolidated with the Company or
any Subsidiary thereof, or on property otherwise acquired by the Company or a
Subsidiary thereof; provided, however, that such Liens (a) were not
created in connection with or in anticipation of such acquisition, merger or
consolidation or such Person becoming a Subsidiary and (b) are not applicable to any
other property of the Company or any of the other Subsidiaries of the Company;




     (v) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted; provided, however,
that any reserve or other appropriate provision as shall be required in conformity
with GAAP shall have been made therefore or in the case of a Subsidiary located
outside the United States, general accounting principles in effect from time to time
in its jurisdiction of incorporation;




     (vi) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of



27









 







business and with respect to amounts which are not yet delinquent for a period
of more than sixty (60) days or are being contested in good faith by appropriate
proceedings;




     (vii) Liens incurred or deposits made in the ordinary course of business (a) to
secure the performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar obligations, or
arising as a result of progress payments under government contracts, (b) in
connection with workers’ compensation, unemployment insurance and other social
security legislation, or (c) to secure the performance of surety bonds, and appeal
bonds required in connection with judgments that are not paid by an unaffiliated
insurance carrier pursuant to any insurance policy maintained by the Company;




     (viii) easements, rights-of-way, zoning and similar restrictions, encroachments
and other minor defects or irregularities in title, in each case that do not and
will not interfere in any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;




     (ix) Liens to secure Purchase Money Indebtedness or other Capital Expenditures
that is otherwise permitted under this Indenture; provided, however,
that (i) such Liens shall be created substantially simultaneously with, or within
180 days after, the making of such Capital Expenditure and (ii) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness;




     (x) Liens securing Indebtedness and Capital Lease Obligations permitted to be
incurred under clause (iv) of the second paragraph of Section 4.10 hereof;
provided, however, that such Lien does not extend to any property
other than that subject to the underlying lease;




     (xi) Liens in favor of any Governmental Authority to secure progress, advance
or other payments pursuant to any contract or provision of any statute;




     (xii) Liens arising from leases and subleases of real property or licenses
granted to others which do not interfere in any material respect with the business
of any Group Member;




     (xiii) Liens securing reimbursement obligations under commercial letters of
credit, but only in or upon the goods the purchase of which were financed by such
letters of credit;




     (xiv) Liens securing Acquisition Indebtedness, provided that such Liens
do not extend to or cover any property other than the property directly or
indirectly acquired with the proceeds of such Acquisition Indebtedness and any
improvements thereto (unless such Liens are otherwise Permitted Liens);



28









 






     (xv) renewals of Liens permitted by clause (ii) above securing Indebtedness
permitted by clause (vii) of the second paragraph of Section 4.10 that is a
refinancing, replacement, refunding, renewal or extension of any Indebtedness
described in clause (ii) above; provided, however, that no such Lien
permitted by this clause (xv) shall cover any property that is not subject to such
Lien on the date hereof and that the amount of Indebtedness secured thereby is not
increased after the date hereof;




     (xvi) Liens in favor of the Collateral Trustee for the benefit of, among
others, the holders of the Notes;




     (xvii) any Lien provided for in the Reorganization Plan or part of any
settlement or restructuring entered into prior to the Effective Date and approved by
the Bankruptcy Court;




     (xviii) Liens on Receivables or inventory of the Company or any Subsidiary and
their related assets;




     (xix) Liens solely on any cash earnest money deposits made by the Company or
any of its Subsidiaries in connection with any letter of intent or purchase
agreement not prohibited hereunder;




     (xx) purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to operating leases of personal property entered into in
the ordinary course of business;




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




     (xxii) Liens incurred in connection with the incurrence of Indebtedness of a
Foreign Subsidiary permitted by Section 4.10 provided that such Indebtedness
is not secured by any domestic assets of the Company or any Guarantor;




     (xxiii) Liens arising out of attachments, judgments or awards as to which an
appeal or other appropriate proceedings for contest or review are timely commenced
(and as to which foreclosure and other enforcement proceedings shall not have been
commenced, unless fully bonded or otherwise effectively stayed) and as to which
appropriate reserves have been established in accordance with GAAP;




     (xxiv) Liens on assets transferred to a Securitization Entity or on assets of a
Securitization Entity, in either case incurred in connection with a Qualified
Securitization Transaction;




     (xxv) Liens incurred in connection with Sales and Leaseback Transactions
permitted under Section 4.17;



29









 






     (xxvi) Liens on cash and Cash Equivalents securing Indebtedness in respect of
Currency Agreements, Interest Rate Agreements and Swap Agreements to the extent any
such arrangements with respect to interest rates and foreign currencies are solely
to hedge against fluctuations in interest rates and the values of foreign currencies
receivable or payable by it and permitted by clause (ix) of the second paragraph of
Section 4.10;




     (xxvii) Liens created in the ordinary course of business in favor of banks and
other financial institutions over credit balances of any bank accounts of any Group
Member held at such banks or financial institutions, as the case may be, to
facilitate the operation of cash pooling and/or interest set-off arrangements in
respect of such bank accounts in the ordinary course of business;




     (xxviii) Liens arising by virtue of any statutory or common law provision
relating to bankers’ liens, rights of set-off or similar rights and remedies as to
deposit accounts;




     (xxix) Liens securing Indebtedness permitted by clause (vi) of the second
paragraph of Section 4.10;




     (xxx) Liens on assets of any Excluded Subsidiary to secure Indebtedness of any
Group Member (including Indebtedness of such Excluded Subsidiary) permitted under
clause (xxvi) of the second paragraph of Section 4.10;




     (xxxi) Liens securing Indebtedness permitted by clauses (xi) and (xvi) of the
second paragraph of Section 4.10;




     (xxxii) Liens securing any Permitted Subordinated Indebtedness; provided that
such Liens shall be junior to the “Third Priority Liens” referred to in the
Intercreditor Agreement;




     (xxxiii) with respect to each Mortgaged Property, the Liens permitted in the
Mortgage for such Mortgaged Property;




     (xxxiv) Liens created under Section 4.7 of the Collateral Trust Agreement in
favor of the Collateral Trustee;




     (xxxv) Liens granted by the Company or a Subsidiary upon one or more
Intercompany Loan Notes securing Indebtedness owing to the Company or a Subsidiary;
provided that any such Liens on assets of the Company or any Guarantor shall
be subordinated to any and all Liens securing the Obligations; and




     (xxxvi) other Liens on assets of the Company or its Subsidiaries securing
Indebtedness so long (x) as neither (i) the aggregate outstanding principal amount
of the obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject thereto
exceeds as to all Group Members $150,000,000 at any one time



30









 







and (y) such Liens do not secure Indebtedness permitted by clauses (iii),
(viii), (x), (xvi), (xix), (xx) and (xxii) of the second paragraph of Section 4.10.



     “Permitted Net Cash Proceeds Reinvestments” means (i) assets (“replacement assets”) to
be acquired or built with the Net Cash Proceeds of any Recovery Event (but not any Asset Sale), so
long as (x) such replacement assets are to be used for substantially the same purpose as the assets
that were subject to the relevant Recovery Event (“subject assets”) and (y) such replacement assets
are to be located in the United States to the extent that the subject assets were located in the
United States prior to such Recovery Event and (ii) assets to be acquired or built with the Net
Cash Proceeds of any Asset Sale or Recovery Event that are useful in the business of the Company
but that do not comply with the criteria set forth in clause (i) of this definition.



     “Permitted Open Market Purchase” means any purchase by any Group Member in the open
market (including without limitation, a privately negotiated purchase) of the Notes for less than
the face amount thereof at the time of such purchase, together with accrued and unpaid interest
thereon.



     “Permitted Subordinated Indebtedness” means Indebtedness of the Company (i) which
shall be contractually subordinated to the Obligations and (ii) if such Indebtedness is secured,
any Liens securing such Indebtedness shall be junior to the “Third Priority Liens” referred to in
the Intercreditor Agreement.



     “Person” means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.



     “PIK Interest” means interest paid in the form of increasing the outstanding principal
amount of the Notes or issuing PIK Notes.



     “PIK Interest Payment Date” shall have the meaning set forth in paragraph 1 of the
reverse side of the Notes.



     “PIK Notes” means additional Notes issued under this Indenture in connection with a
PIK Payment containing the same terms and conditions as the Notes (other than issue date).



     “PIK Payment” means an interest payment with respect to the Notes made by increasing
the outstanding principal amount of the Notes or issuing PIK Notes.



     “Positive EBITDA Variance” shall have the meaning set forth in the Intercreditor
Agreement.



     “Preferred Capital Stock” means any Capital Stock of the Company or any of its
Subsidiaries, however designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders of any other
Capital Stock issued by such Person.



     “Pre-Petition Credit Agreement” means the Fourth Amended and Restated Credit
Agreement, dated as of December 29, 2000, as amended, among the Company, the foreign



31









 







subsidiary borrowers parties thereto, the lenders from time to time parties thereto and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as administrative agent for such
lenders.



     “Proceeds Investment Basket” means on any date, an amount equal to (i) the aggregate
amount of Equity Proceeds and Permitted Subordinated Indebtedness Proceeds that have been applied
to make Investments pursuant to clause (xxvii) of the definition of “Permitted Investments” on or
prior to such date (so long as, at the time any such Investment was made, such Equity Proceeds or
Permitted Subordinated Indebtedness Proceeds were Not Otherwise Applied) plus (ii) the aggregate
amount of distributions in cash and Cash Equivalents with respect to any Investment made pursuant
to clause (xxvii) of the definition of Permitted Investments that have been received on or prior to
such date by the Group Member that holds such Investment.



     “Purchase Money Indebtedness” means any Indebtedness incurred in the ordinary course
of business by a Person to finance the cost (including the cost of construction) of an item of
property, the principal amount of which Indebtedness does not exceed the sum of (i) 100% of such
cost and (ii) reasonable fees and expenses of such Person incurred in connection therewith.



     “Purchase Money Note” means a promissory note of a Securitization Entity evidencing a
line of credit, which may be irrevocable, from the Company or any Subsidiary of the Company in
connection with a Qualified Securitization Transaction to a Securitization Entity, which note shall
be repaid from cash available to the Securitization Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in respect of interest,
principal and other amounts owing to such investors and amounts paid in connection with the
purchase of newly generated Receivables or newly acquired equipment.



     “Qualified Securitization Transaction” means any transaction or series of transactions
that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or
any or its Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization Entity (in
the case of a transfer by the Company or any of its Subsidiaries) and (b) any other Person (in the
case of a transfer by a Securitization Entity), or may grant a security interest in, any
Receivables or equipment (whether now existing or arising or acquired in the future) of the Company
or any of its Subsidiaries, and any assets related thereto including, without limitation, all
collateral securing such Receivables and equipment, all contracts and contract rights and all
guarantees or other obligations in respect of such Receivables and equipment, proceeds of such
Receivables and equipment and other assets (including contract rights) which are customarily
transferred or in respect of which security interests are customarily granted in connection with
asset securitization transactions involving Receivables and equipment.



     “Quarterly Interest Payment Date” shall have the meaning set forth in paragraph 1 of
the reverse side of the Notes.



     “Receivable” means a payment owing to a Person (whether constituting an account,
chattel paper, document, instrument or general intangible) arising from the provision of
merchandise, goods or services by such Person, including the right to payment of any interest or
finance charges and other obligations owing to such Person with respect thereto.



32









 





     “Recovery Event” means any settlement of or payment in respect of any property or
casualty insurance claim or any Condemnation relating to any asset of any Group Member.



     “Redemption Date” when used with respect to any Note to be redeemed means the date
fixed for such redemption pursuant to this Indenture.



     “Refinancing Notes” means senior unsecured or subordinated unsecured debt securities,
issued to redeem the Notes.



     “Registration Rights Agreement” means the Registrations Rights Agreement, to be
executed by the Company and each Guarantor, substantially in the form of Exhibit K.



     “Reorganization Plan” means the Fourth Amended Joint Plan of Reorganization proposed
by the Debtors, the Unsecured Creditors Committee, the Asbestos Claimants Committee, the Equity
Committee, the Future Claimants Representative and JPMorgan Chase Bank, N.A., as administrative
agent for the holders of the Bank Claims, as amended or modified from time to time (whether any
such amendment or modification is effected through an amendment or modification to the
Reorganization Plan itself or through the Confirmation Order).



     “Representative” means the First Priority Representative and the Second Priority
Representative and any other representative of holders of Additional Liquidity Facility
Indebtedness in accordance with the Intercreditor Agreement, as amended.



     “Required Filing Dates” shall have the meaning set forth in Section 4.2.



     “Responsible Officer” means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.



     “Restricted Payment” means any of the following: (i) the declaration or payment of any
dividend or any other distribution or payment on Capital Stock of the Company or any Subsidiary
thereof or any payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Subsidiary thereof (other than (a) dividends or distributions
payable solely in Capital Stock (other than Disqualified Capital Stock) or in options, warrants or
other rights to purchase Capital Stock (other than Disqualified Capital Stock), (b) in the case of
Subsidiaries of the Company, dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company or (c) in the case of Foreign Subsidiaries of the Company, dividends or
distributions payable to or from another Foreign Subsidiary), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Company or any Subsidiary
thereof (other than Capital Stock owned by the Company or a Wholly-Owned Subsidiary, excluding
Disqualified Capital Stock), (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value, prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund payment, of any Subordinated
Indebtedness other than the Notes



33









 




(other than Subordinated Indebtedness acquired in anticipation of satisfying a scheduled
sinking fund obligation, principal installment or final maturity, in each case within one year of
the date of such acquisition and other than any Indebtedness of the Company owing to or held by any
Wholly-Owned Subsidiary or Indebtedness of one of the Company’s Subsidiaries owing to and held by
the Company or any Wholly-Owned Subsidiary), or (iv) the making of any Investment or guarantee of
any Investment in any Person other than a Permitted Investment. For purposes of determining the
amount expended for Restricted Payments, cash distributed or invested shall be valued at the face
amount thereof and property other than cash shall be valued at its fair market value.




     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc., or any successor to the rating agency business thereof.



     “Sale and Leaseback Transaction” means any arrangement with any Person providing for
the leasing by any Group Member of real or personal property that has been or is to be sold or
transferred by such Group Member to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental obligations of such
Group Member.



     “SEC” or “Commission” means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing substantially the same
functions.



     “Securities” means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as “securities” or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.



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



     “Securitization Entity” means a Wholly-Owned Subsidiary of the Company (or another
Person in which the Company or any Subsidiary of the Company makes an Investment and to which the
Company or any Subsidiary of the Company transfers Receivables or equipment and related assets)
which engages in no activities other than in connection with the financing of Receivables or
equipment and which is designated by the Board of Directors of the Company (as provided below) as a
Securitization Entity (a) no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which (i) is guaranteed by the Company or any Subsidiary of the Company (excluding
guarantees of obligations (other than the principal of, and interest on, Indebtedness)) pursuant to
Standard Securitization Undertakings, (ii) is recourse to or obligates the Company or any
Subsidiary of the Company in any way other than pursuant to Standard Securitization Undertakings or
(iii) subjects any property or asset of the Company or any Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings, (b) with which neither the Company nor any Subsidiary of the Company
has any material contract, agreement, arrangement or understanding other than on terms no less
favorable to the Company or such



34









 







Subsidiary than those that might be obtained at the time from Persons that are not Affiliates
of the Company, other than fees payable in the ordinary course of business in connection with
servicing Receivables of such entity, and (c) to which neither the Company nor any Subsidiary of
the Company has any obligation to maintain or preserve such entity’s financial condition or cause
such entity to achieve certain levels of operating results. Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a certified
copy of the resolution of the Board of Directors of the Company giving effect to such designation
and an Officers’ Certificate certifying that such designation complied with the foregoing
conditions.



     “Security Documents” means the collective reference to the Collateral Agreement, the
Foreign Pledge Agreements, the Mortgages and all other security documents hereafter delivered to
the Collateral Trustee granting a Lien on any property of any Person to secure the obligations and
liabilities of the Company and the Guarantors under any Note Document, together with the
Intercreditor Agreement.



     “Senior Loan Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent under the Senior Loan Agreement, together with any of its successors.



     “Senior Loan Agreement” means the Tranche A Term Loan Agreement substantially in the
form of Exhibit G hereto, dated as of the date hereof, among the Company, the lenders from time to
time parties thereto and the Senior Loan Agent, together with all instruments and other agreements
entered into by the Company or its Subsidiaries in connection therewith.



     “Senior Loan Facility” means (i) the Senior Loan Agreement; (ii) any and all
agreements, instruments and documents executed or delivered pursuant to or in connection with such
Senior Loan Agreement; and (iii) any and all credit agreements, loan agreements, note purchase
agreements, indentures or other agreements, documents or instruments refinancing, refunding or
otherwise replacing, in whole or in part, the Senior Loan Agreement or any other agreement deemed a
Senior Loan Facility under clause (ii) hereof, whether or not with the same agent, trustee,
representative, lenders or holders, regardless of whether the Senior Loan Facility or any portion
thereof was outstanding or in effect at the time of such restatement, renewal, extension,
restructuring, supplement or modification. Without limiting the generality of the foregoing, the
term “Senior Loan Facility” shall include any amendment, restatement, renewal, extension,
restructuring, supplement or modification to any Senior Loan Facility and all refundings,
refinancing and replacements of any Senior Loan Facility, in whole or in part, including any
agreement (w) extending the maturity of any Indebtedness incurred thereunder or contemplated
thereby, (x) adding or deleting borrowers or guarantors thereunder, provided that the
addition of such borrower or guarantor would not be prohibited by this Indenture, (y) increasing
the amount for Indebtedness incurred thereunder or available to be borrowed thereunder, provided
such increase is permitted to be incurred under this Indenture, or (z) otherwise altering the terms
and conditions thereof in a manner not prohibited by this Indenture.



     “Senior Loan Facility Indebtedness” means the following obligations, whether
outstanding on the Effective Date or thereafter incurred: all Indebtedness and other monetary
obligations of the Company or any Subsidiary of the Company under or in respect of the Senior Loan
Facility or any Interest Rate Agreement, Currency Agreement or Swap Agreement related



35









 







to Indebtedness under the Senior Loan Facility, whether for principal, interest (including
interest accruing after the filing of a petition by or against the Company or any Subsidiary of the
Company under any Bankruptcy Laws, whether or not such interest is allowed as a claim after such
filing in any proceeding under such law), fees, expenses, indemnification or otherwise.



     “Senior Loan Repayment Date” means the date on which the loans deemed made pursuant to
the Senior Loan Agreement on the Effective Date have been paid in full.



     “Senior Loans” mean the loans made or deemed made under the Senior Loan Agreement.



     “Significant Shareholder” means any beneficial holder or group of affiliated
beneficial holders of securities representing 30% or more of the voting power of the Company.



     “Specified Indebtedness” means on any date or for any period, (i) Intercompany Loans,
(ii) Indebtedness described in clause (f) of the definition thereof, so long as such Indebtedness
is contingent and (iii) any Indebtedness described in clause (j) of the definition thereof and
Indebtedness permitted under Sections 4.10 (xvi), (xx) and (xxi), unless any such Indebtedness
described in this clause (iii) would be required to be reflected as debt on the consolidated
balance sheet of the Company on such date and the payments associated therewith would be required
to be included as interest expense on the consolidated income statement of the Company for such
period, in each case in accordance with GAAP.



     “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Company or any Subsidiary of the Company which are reasonably
customary in a Receivables or equipment transaction.



     “Subordinated Indebtedness” means Indebtedness of any Person which is expressly
subordinated in right of payment to any other Indebtedness of such Person.



     “Subsidiary” of any specified Person means any corporation, partnership, limited
liability company, joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which more than 50% of the
total voting power of the Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, officers or trustees thereof is held by such
first-named Person or any of its Subsidiaries; or (ii) in the case of a partnership, limited
liability company, joint venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in accordance with GAAP such
entity is consolidated with the first-named Person for financial statement purposes.
Notwithstanding the foregoing, an Unrestricted Subsidiary shall not be deemed a Subsidiary of the
Company other than for purposes of the definition of Unrestricted Subsidiary, unless the Company
shall have designated such Unrestricted Subsidiary as a “Subsidiary” by written notice to the
Trustee.



     “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,



36









 







financial or pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Company or any Subsidiary shall be a
“Swap Agreement.”



     “Tax Restructuring” has the meaning set forth in the Senior Loan Agreement as in
effect on the date hereof.



     “Thornwood” means Thornwood Associates Limited Partnership and its Affiliates. For
the avoidance of doubt, Icahn Enterprises L.P. shall be deemed to be an Affiliate of Thornwood.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in
effect on the date of this Indenture (except as provided in Section 8.3 hereof).



     “Trustee” means the party named as such in this Indenture until a successor replaces
it pursuant to this Indenture and thereafter means the successor.



     “UCC” means the Uniform Commercial Code as the same may, from time to time, be enacted
and in effect in the State of New York; provided, that to the extent that the Uniform
Commercial Code is used to define any term herein and such term is defined differently in different
Articles of the Uniform Commercial Code, the definition of such term contained in Article 9 shall
govern; provided further, that in the event that, by reason of mandatory provisions
of law, any or all of the attachment, perfection or priority of, or remedies with respect to, any
Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of New York, the term “Uniform Commercial Code” shall mean the
Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of
the provisions thereof relating to such attachment, perfection, priority or remedies and for
purposes of definitions related to such provisions.



     “U.K. Administration” shall have the meaning set forth in the definition of “U.K.
Subsidiaries.”



     “U.K. Dissolution” means the winding up or striking off of (x) those U.K. Subsidiaries
listed on Schedule 6 hereto or (y) any other U.K. Subsidiary which is no longer trading and which
has gross assets (as shown in its most recent set of Audited
Accounts) of less than ₤10,000.



     “U.K. Settlement Agreement” means that certain agreement dated September 26, 2005
among the Company, T&N Limited, certain bankruptcy plan proponents, High River Limited Partnership,
the Pension Protection Fund and James J. Gleave, Simon V. Freakley and Gary P. Squires of Kroll
Limited and their successors as joint administrators of T&N Limited, appointed by order of the High
Court of Justice of England and Wales.



     “U.K. Subsidiaries” means those Subsidiaries of the Company which are organized under
the laws of any jurisdiction in the United Kingdom and which are the subject of administration
petitions under the U.K. Insolvency Act 1986 (collectively, and including upon



37









 







the grant of such petitions, the “U.K. Administration”) and are debtors in cases pending under
Chapter 11 of the Bankruptcy Code.



     “Unrestricted Subsidiary” means any Subsidiary of the Company which shall have been
designated after the Effective Date as an Unrestricted Subsidiary by a resolution adopted by the
Board of Directors of the Company; provided that a Subsidiary may be so classified as an
Unrestricted Subsidiary only if such classification is in compliance with Section 4.23 hereof and
an Unrestricted Subsidiary may be designated as a Subsidiary only if such classification is in
compliance with the definition of “Subsidiary” contained in this Section 1.1. The Trustee shall be
given prompt written notice by the Company of each resolution adopted by the Board of Directors of
the Company under this provision, together with a copy of each such resolution adopted.



     “U.S. Debtors” has the meaning set forth in the Recitals.



     “U.S. Government Obligations” means (i) securities that are direct obligations of the
United States of America for the payment of which its full faith and credit are pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt.



     “U.S. Legal Tender” means such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private debts.



     “Wagner Lighting Divestiture” means a Disposition consisting of the sale by the
Company and its Subsidiaries of certain assets located in the United States related to the Wagner
Lighting Group, including manufacturing equipment related thereto but excluding the sale of the
“Wagner” brand.



     “Wholly-Owned Subsidiary” means as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly-Owned Subsidiaries.



          SECTION 1.2.   Other Definitions. The definitions of the following terms may be found in the Sections indicated
as follows:



38









 






	 	 	 	 	 
	Term	 	Defined in Section
	“Agent Members”
	 	 	2.17	 
	“Business Day”
	 	 	14.8	 
	“Covenant Defeasance”
	 	 	9.3	 
	“Legal Defeasance”
	 	 	9.2	 
	“Paying Agent”
	 	 	2.3	 
	“Physical Notes”
	 	 	2.1	 
	“Registrar”
	 	 	2.3	 
	“transfer”
	 	 	5.1	 






          SECTION 1.3.   Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the portion of such provision required to be
incorporated herein in order for this Indenture to be qualified under the TIA is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:




     “indenture securities” means the Notes.



     “indenture security holder” means a Holder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor on the indenture securities” means the Company, the Guarantors or any other obligor
on the Notes.



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



          SECTION 1.4.   Rules of Construction. Unless the context otherwise requires:





	 	(1)	 	a term has the meaning assigned to it herein, whether defined
expressly or by reference;
	 
	 	(2)	 	an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
	 
	 	(3)	 	“or” is not exclusive;
	 
	 	(4)	 	words in the singular include the plural, and in the plural
include the singular;
	 
	 	(5)	 	words used herein implying any gender shall apply to every
gender;




39









 






	 	(6)	 	“herein,” “hereof” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
Subdivision, unless expressly stated otherwise;
	 
	 	(7)	 	provisions apply to successive events and transactions;
	 
	 	(8)	 	the words “include,” “includes” and “including” shall be deemed
to be followed by the phrase “without limitation”;
	 
	 	(9)	 	references to agreements or other contractual obligations
shall, unless otherwise specified, be deemed to refer to such agreements, or
other contractual obligations, as amended, supplemented or otherwise modified
from time to time; and
	 
	 	(10)	 	the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights.





ARTICLE 2




THE NOTES




          SECTION 2.1.   Dating; Incorporation of Form in Indenture. The Notes and the
Trustee’s certificate of authentication shall be substantially in the form of Exhibit A which is
incorporated in and made part of this Indenture. The Notes shall have notations, legends or
endorsements required by law, stock exchange rule, usage, or agreements to which the Company or any
Guarantor is subject. The Company may use “CUSIP” numbers in issuing the Notes. Each Note shall be
dated the date of its authentication.




     The Notes may be issued in the form of one or more Global Notes having the legend set forth in
Exhibit H. The Notes may also be issued in the form of certificated Notes (the “Physical Notes”),
without the “Schedule of Exchanges of Interests in the Global Note” set forth in Exhibit A and
without the legend set forth in Exhibit H.



     The Notes shall be issuable only in registered form without coupons. The Global Notes (and
any increase in the principal amount of Notes as a result of a PIK Payment) shall be in
denominations of whole dollar integrals.



     The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Domestic Subsidiary Guarantors and the Trustee,
by their execution and delivery of this Indenture (and the Foreign Subsidiary
Guarantors, by their execution and delivery of a Foreign Subsidiary Guarantee), expressly
agree to such terms and provisions and to be bound thereby.



          SECTION 2.2.   Execution and Authentication. The Notes shall be executed on behalf of
the Company by two Officers of the Company or an Officer and a Secretary or Assistant Secretary of
the Company. Such signatures may be either manual or facsimile. If an



40









 






Officer whose signature is on
a Note no longer holds that office at the time the Trustee authenticates the Note or at any time
thereafter, the Note shall be valid nevertheless.




     A Note shall not be valid until the Trustee manually signs the certificate of authentication
on the Note. Such signature shall be conclusive evidence that the Note has been authenticated under
this Indenture.



     At any time, and from time to time, the Trustee shall, upon receipt of a Company Request,
authenticate and deliver Notes in the amounts and in the manner specified in such Company Request;
provided that the aggregate principal amount of Notes issued hereunder shall not exceed
$305,236,000 (excluding any PIK Notes and any increase in the principal amount of Notes as a result
of a PIK Payment), subject to adjustment pursuant to Section 8.1(7).



     With respect to a PIK Payment, no later than five Business Days prior to the relevant PIK
Interest Payment Date, the Company shall deliver to the Trustee, (i) with respect to Global Notes,
a Company Request to increase the outstanding principal amount of such Notes by the required amount
of PIK Interest (rounded up to the nearest whole dollar) (or, if necessary, pursuant to the
requirements of the Depositary or otherwise, new Global Notes in the amount of the PIK Interest and
a Company Request to authenticate and deliver such new Global Notes), and (ii) with respect to
Physical Notes, the required amount of new Physical Notes in the amount of the PIK Interest
(rounded up to the nearest whole dollar) and a Company Request to authenticate and deliver such
Physical Notes. The Trustee shall on the relevant PIK Interest Payment Date, in accordance with a
Company Request, make appropriate amendments to the schedule of principal amounts of such Global
Notes or, if applicable, authenticate and deliver PIK Notes. Each PIK Payment shall be made pro
rata with respect to the outstanding Notes, and the Company shall have the right to aggregate
amounts of interest payable in the form of PIK Notes to a Holder of outstanding Notes and issue to
such Holder a single Note in payment thereof.



     The PIK Notes shall contain the same terms and conditions as the Notes (except the issue date)
and shall be treated together with the Notes as a single class for all purposes under this
Indenture. Unless the context otherwise requires, references to “principal amount” of the Notes
includes any increase in outstanding principal amount of any Notes as a result of a PIK Payment.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes and PIK Notes. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so, except with regard to the original issuance of
the Notes and pursuant to Section 2.7. Except as provided in the preceding sentence, each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. Such authenticating agent shall have the same right as the
Trustee in dealing with the Company or an Affiliate of the Company.



          SECTION 2.3.   Agents. The Company shall maintain an office or agency in the Borough
of Manhattan, City of New York, State of New York where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and where Notes may be presented for payment (“Paying
Agent”) and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-Registrars and



41









 






one or more additional Paying
Agents. The Company may change any Paying Agent, Registrar or co-Registrar without notice to any
Noteholder. Neither the Company nor any of its Subsidiaries or Affiliates may act as Paying Agent
but may act as Registrar or co-Registrar.




     The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent which is not a party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying Agent, or agent for
service of notices and demands, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation pursuant to Section 7.7. The Company
initially appoints the Trustee as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes.



          SECTION 2.4.   Paying Agent to Hold Money in Trust. On or before each due date of the
principal of, premium if any, and cash interest, on any Notes, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal, premium if any, and cash interest, so becoming
due. Each Paying Agent shall hold in trust for the benefit of Noteholders or the Trustee all money
held by the Paying Agent for the payment of principal, premium, if any, or cash interest on the
Notes (whether such money has been paid to it by the Company or any other obligor on the Notes),
and the Company and the Paying Agent shall notify the Trustee of any default by the Company or any
Guarantor (or any other obligor on the Notes) in making any such payment. Money held in trust by
the Paying Agent need not be segregated except as required by law and in no event shall the Paying
Agent be liable for any interest on any money received by it hereunder. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at any time
during the continuance of any Event of Default specified in Section 6.1(1) or (2), upon written
request to a Paying Agent, require such Paying Agent to forthwith pay to the Trustee all sums so
held in trust by such Paying Agent together with a complete accounting of such sums. Upon doing so,
the Paying Agent shall have no further liability for the money delivered to the Trustee.




          SECTION 2.5.   Noteholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee on or prior to the tenth Business Day
before each Interest Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of the names and
addresses of Noteholders, including the aggregate principal amount of Notes held by each such
Noteholder.




          SECTION 2.6.   Transfer and Exchange. (a)  When a Note is presented to the Registrar
with a request to register the transfer thereof, the Registrar shall register the transfer as
requested if the requirements of applicable law and of this Indenture are met and, when Notes are
presented to the Registrar with a request to exchange them for an equal principal amount of Notes
of other authorized denominations, the Registrar shall make the exchange as requested, provided
that every Note presented or surrendered for registration of transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer in form satisfactory to the Company
and the Registrar duly executed by the Holder thereof or his attorney, duly authorized in writing.
To permit registration of transfers and exchanges, upon surrender of any



42









 






Note for registration of
transfer at the office or agency maintained pursuant to Section 2.3 hereof, the Company shall issue
and execute and the Trustee shall authenticate Notes at the Registrar’s request. Any exchange or
transfer shall be without any service charge to the Noteholder, except that the Company may require
payment by the Noteholder of a sum sufficient to cover any tax or the governmental charge that may
be imposed in relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to this Indenture. The Trustee shall not be required to register transfers of
Notes or to exchange Notes for a period of 15 days before selection of any Notes to be redeemed.
The Trustee shall not be required to exchange or register transfers of any Notes called or being
called for redemption in whole or in part, except the unredeemed portion of any Note being redeemed
in part. All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture
will evidence the same debt and will be entitled to the same benefits under this Indenture as the
Notes surrendered upon such transfer or exchange.




          (b) Except as expressly provided herein, neither the Trustee nor the Registrar shall have any
duty to monitor the Company’s compliance with or have any responsibility with respect to the
Company’s compliance with any federal or state securities laws.




          (c) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers
of the beneficial interests in such Global Note may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial
interest in the Global Note shall be required to be reflected in a book entry.




          SECTION 2.7.   Replacement Notes. If a mutilated Note is surrendered to the Registrar
or Trustee, or if the Holder of such Note furnishes to the Company and the Trustee evidence
reasonably acceptable to them of the ownership and destruction, loss or theft of such Note or if
the reasonable requirements of the Trustee and of Section 8-405 of the UCC are met, then the
Company shall issue and the Trustee shall authenticate a replacement Note. An indemnity bond may be
required by the Company or the Trustee that is sufficient in the judgment of the Company and the
Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if a Note is
replaced. The Company or the Trustee each may charge for its expenses (including reasonable
attorneys’ fees and expenses) in replacing a Note.




     Every replacement Note is a separate obligation of the Company, entitled to all the benefits
of this Indenture equally and proportionally with all other Notes duly issued hereunder.



          SECTION 2.8.   Outstanding Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.8 as not outstanding.




     If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding until the Company
and the Trustee receive proof satisfactory to each of them that the replaced Note is held by a bona
fide purchaser in whose hands such obligation is a legal, valid and binding obligation of the
Company.



43









 





     If a Paying Agent holds on a Redemption Date or the Maturity Date money sufficient to pay the
principal of, premium, if any, and all accrued interest with respect to Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes shall cease to be outstanding and interest on
them shall cease to accrue.



     Subject to Section 14.6, a Note does not cease to be outstanding solely because the Company or
an Affiliate holds the Note.



          SECTION 2.9.   Temporary Notes. Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form, and shall carry all rights, benefits and privileges, of definitive Notes
but may have variations that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes presented to it.




          SECTION 2.10.   Cancellation. The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee shall cancel and retain or may
dispose of (subject to the record-retention requirements of the Exchange Act), in accordance with
its normal practice, all Notes surrendered for transfer, exchange, payment or cancellation. Subject
to Sections 2.7 and 2.8 hereof, the Company may not issue new Notes to replace Notes in respect of
which it has previously paid all principal, premium and interest accrued thereon, or delivered to
the Trustee for cancellation.




          SECTION 2.11.   Defaulted Interest. If the Company defaults in a payment of any interest, whether in the form of
PIK Interest
or otherwise, on the Notes, it shall pay the defaulted amounts, plus (to the extent permitted by
law) Default Interest (as defined in paragraph 1 of the reverse side of the Notes) to the persons
who are Noteholders on a subsequent special record date.




     The Company shall fix the special record date and payment date for payment of such defaulted
amounts in a manner satisfactory to the Trustee and provide the Trustee at least 20 days notice of
the proposed amount of Default Interest to be paid and the special payment date. At least 15 days
before the special record date, the Company shall mail or cause to be mailed to each Noteholder at
his address as it appears on the Notes register maintained by the Registrar a notice that states
the special record date, the payment date (which shall be not less than five nor more than ten days
after the special record date), and the amount to be paid. In lieu of the foregoing procedures, the
Company may pay Default Interest in any other lawful manner satisfactory to the Trustee.



          SECTION 2.12.   Deposit of Moneys. Prior to 10:00 a.m., New York City time, as
required, on (i) each Quarterly Interest Payment Date and (ii) the Maturity Date, the Company shall
have deposited with the Paying Agent in immediately available funds money sufficient to make cash
payments due on such Quarterly Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Trustee to remit payment to the Holders at such times. The
interest, premium, if any, and the principal on the Global Notes shall be payable to



44









 






the Depository
or its nominee, as the case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal, premium, if any, and interest on Physical Notes shall be
payable at the office of the Paying Agent.




          SECTION 2.13.   CUSIP Number. The Company in issuing the Notes may use a “CUSIP”
number (or numbers), and if so, the Trustee may use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number(s) printed in the
notice or on the Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes. If not otherwise printed on the Note authenticated by the Trustee, the
Company will promptly notify in writing the Trustee of any such CUSIP number used by the Company in
connection with the Notes and any change in such CUSIP number.




          SECTION 2.14.   Record Date. The record date for purposes of determining the identity
of Holders entitled to vote or consent to any action by vote or consent authorized or permitted
under this Indenture shall be determined as provided in TIA Section 316(c).




          SECTION 2.15.   Payments to Holders. Notwithstanding any provisions of this Indenture
and the Notes to the contrary:




          (a) Except for any payments to be made on a Redemption Date or the Maturity Date, cash
payments with respect to any of the Notes may be made by the Paying Agent upon receipt from the
Company of immediately available funds, by check mailed to the Holder, at the address shown in the
registrar of the Notes maintained by the Registrar pursuant to Section 2.3 hereof; or




          (b) At the request of a Holder of at least $5,000,000 in aggregate principal amount of Notes
outstanding, all cash payments with respect to any of the Notes may be made by the Paying Agent
upon receipt from the Company of immediately available funds prior to 10:00 a.m., New York City
time, directly to such Holder of such Note (whether by federal funds, wire transfer or otherwise);
provided, however, that no such federal funds, wire transfer or other such direct
payment shall be made to any Holder under this Section 2.15(b) unless such Holder has delivered
written instructions to the Trustee prior to the relevant record date for such payment requesting
that such payment will be so made and designating the bank account to which such payments shall be
so made and, in the case of payments of principal, surrenders the Note to the Trustee in exchange
for a Note or Notes aggregating the same principal amount as the unredeemed principal amount of the
Notes surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the
Holder pursuant to this Section 2.15(b) unless a new instruction is delivered prior to the relevant
record date for a payment date. The Company will indemnify and hold the Trustee harmless against
any loss, liability or expense (including attorneys’ fees and expenses) resulting from any act or
omission to act on the part of the Company or any such Holder in connection with any such agreement
or which the Paying Agent may incur as a result of making any payment in accordance with any such
agreement.



All payments made on a Redemption Date are subject to Section 2.8 and Article 3 hereof. No later
than fifteen (15) days prior to the Maturity Date, the Trustee shall notify the Holder, at the
address shown in the registrar of the Notes maintained by the Registrar pursuant to Section 2.3





45











 




hereof, that the Company expects that the final installment of principal of and interest on the
Notes will be paid on the Maturity Date. Such notice shall specify that such final installment will
be payable only upon presentation and surrender of such Note and shall specify the place where such
Notes may be presented and surrendered for payment of such installment. Additionally, in accordance
with Section 2.8, such Notes shall cease to be outstanding.




          SECTION 2.16.   Closing Deliverables The Company shall provide the following closing
deliverables prior to or concurrently with entering into this Indenture on the Effective Date:




          (a) Indenture; Note Documents The Trustee shall have received (i) this Indenture,
executed and delivered by the Trustee and the Company and the Domestic Subsidiary Guarantors, (ii)
the Collateral Agreement, executed and delivered by the Company and each applicable Guarantor,
(iii) an Acknowledgement and Consent in the form attached to the Collateral Agreement, executed and
delivered by each Issuer (as defined therein), if any, that is not the Company or a Guarantor, to
the extent required to be delivered pursuant to the Exit Facility Agreement, (iv) the Registration
Rights Agreement, executed and delivered by the Company, (v) the Foreign Subsidiary Guarantee,
executed and delivered by each Foreign Subsidiary Guarantor, (vi) each Foreign Pledge Agreement,
executed and delivered by the Company and each applicable Guarantor and (vii) the Collateral Trust
Agreement, executed by each party thereto.




          (b) DIP Facility The Trustee shall have received an Officers’ Certificate of the
Company certifying that (i) the commitments under the DIP Facility have been terminated, all
letters of credit issued thereunder (other than those letters of credit issued under the DIP
Facility (if any) which shall be reevidenced by the Exit Facility) shall have expired or been
cancelled, and all amounts outstanding thereunder (including, without limitation, all fees accrued
but unpaid thereunder to the Effective Date, whether or not then payable under the terms thereof)
have been repaid in full (which termination and repayment may be contemporaneous with the delivery
of the closing deliverables under this Section 2.16 and the application of proceeds of any
borrowings and the issuance of any letters of credit under the Exit Facility Agreement to occur on
the Effective Date); and (ii) satisfactory arrangements shall have been made for the termination of
all Liens and guarantees granted in connection therewith.




          (c) Exit Facility The Trustee shall have received an Officers’ Certificate of the
Company certifying that all conditions precedent to the effectiveness of the Exit Facility
Agreement shall have been satisfied or waived in accordance with its terms.




          (d) Senior Loan Agreement The Trustee shall have received an Officers’ Certificate of
the Company certifying that all conditions precedent to the effectiveness of the Senior Loan
Agreement shall have been satisfied or waived in accordance with its terms and the loans thereunder
shall have been deemed made.




          (e) Intercreditor Arrangements The Trustee shall have received the Intercreditor
Agreement, executed and delivered by all parties thereto.



46









 







          (f) Reorganization Plan The Trustee shall have received a copy of the Notice of (A)
Entry of Order Confirming Fourth Amended Joint Plan of Reorganization for Debtors and
Debtors-In-Possession (As Modified); (B) Effective Date of the Plan; (C) the Substantial
Consummation of the Plan; and (D) Bar Dates for Certain Administrative Claims and Professional
Claims as filed with the Bankruptcy Court on the Effective Date.




          (g) Fees The Trustee shall have received an Officers’ Certificate of the Company
certifying that the holders of Bank Claims and Surety Claims (as defined in the Reorganization
Plan) and the Trustee have received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and expenses of legal counsel and
financial advisors), pursuant to the Pre-Petition Credit Agreement, the final order in respect of
the DIP Facility, this Indenture, the other Note Documents and the Confirmation Order (which
receipt may be contemporaneous with, or so long as on the Effective Date subsequent to, the
delivery of the other closing deliverables under this Section 2.16 and the application of proceeds
of any borrowings and the issuance of any letters of credit under the Exit Facility to occur on the
Effective Date).




          (h) Supporting Documents The Trustee shall have received for the Company and each of
the Guarantors:





          (i) a copy of its Organizational Documents, as amended up to and including the
Effective Date, certified as of a recent date by the applicable Governmental Authority of
its jurisdiction of incorporation, organization or formation;




          (ii) (x) with respect to the Company and each Domestic Subsidiary Guarantor, a good
standing certificate from the applicable Governmental Authority of its jurisdiction of
incorporation, organization or formation and from the State of Michigan (to the extent it is
qualified to do business in the State of Michigan), each as of a recent date prior to or on
the Effective Date and (y) with respect to the Company, recent evidence of its qualification
to do business as a foreign corporation in each State of the United States of America;




          (iii) with respect to any Foreign Subsidiary Guarantor, such customary evidence of its
legal existence, its power and authority to enter into the Note Documents to which it is a
party and the incumbency and signatures of its officers or other representatives and such
other documents or evidence as shall be required to be delivered pursuant to the Exit
Facility.




          (iv) signature and incumbency certificates of its officers executing this Indenture and
the other Note Documents to which it is a party, dated as of the Effective Date; and




          (v) duly adopted resolutions of its Board of Directors or similar governing body
approving and authorizing the execution, delivery and performance of this Indenture and the
other Note Documents to which it is a party or by which it or its assets may be bound as of the Effective Date, certified as of the Effective Date by its



47









 







Secretary or Assistant Secretary or Person serving an analogous function as being in full
force and effect without modification or amendment.



          (i) Opinion of Counsel The Trustee shall have received (i) the favorable written
opinion of counsel to the Company and the Guarantors substantially in the form of Exhibit L and
(ii) such other legal opinions as are also provided to the lenders under the Exit Facility (with
such modifications to make such opinions applicable to the Notes, this Indenture and the other Note
Documents).




          (j) Confirmation Order The Trustee shall have received a copy of the Confirmation
Order, certified by an Officer of the Company to be a true, complete and correct copy of such
document, and further certifying that the Confirmation Order (i) is in full force and effect and
has not been stayed, reversed, modified or amended and (ii) approves and authorizes the
transactions contemplated by this Indenture, the other Note Documents and the Reorganization Plan
and otherwise is not inconsistent with the provisions hereof and thereof.




          (k) Qualification under the Trust Indenture Act The Trustee shall have received a
copy of the Form T-3 filed with the SEC for qualification of this Indenture under the TIA.




          SECTION 2.17.  Book-Entry Provisions for Global Notes.




          (a) The Global Notes initially shall (i) be registered in the name of the Depository or the
nominee of such Depository, (ii) be delivered to the Trustee as custodian for such Depository and
(iii) bear legends as set forth in Exhibit H.




     Members of, or participants in, the Depository (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Note held on their behalf by Depository, or the Trustee
as its custodian, or under the Global Note, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note 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 Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Note.



          (b) Transfers of Global Notes shall be limited to transfer in whole, but not in part, to the
Depository, its successors or their respective nominees. Interests of beneficial owners in the
Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository. In addition, Physical Notes shall be transferred to all beneficial
owners in exchange for their beneficial interests in Global Notes if (i) the Depository notifies
the Company that it is unwilling or unable to continue as Depository for any Global Note and a
successor depositary is not appointed by the Company within 90 days of such notice or (ii) an Event
of Default has occurred and is continuing and the Registrar has received a written request from the
Depository to issue Physical Notes.




          (c) In connection with any transfer or exchange of a portion of the beneficial interest in any
Global Note to beneficial owners pursuant to paragraph (b), the Registrar shall (if



48









 







one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall
upon receipt of a written order from the Company authenticate and make available for delivery, one
or more Physical Notes of like tenor and amount.



          (d) In connection with the transfer of Global Notes as an entirety to beneficial owners
pursuant to paragraph (b), the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical Notes.




          (e) The Holder of any Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture, the Notes or the Guarantees.




ARTICLE 3




REDEMPTION




          SECTION 3.1.   Notices to Trustee. If the Company elects to redeem Notes pursuant to
Section 3.7 or is required to redeem Notes pursuant to Section 3.8, at least 5 days prior to the
Redemption Date (or such shorter period prior to the Redemption Date as the Trustee may agree to in
writing) and at least 1 Business Day before the Company is required to mail or cause to be mailed,
or send by facsimile or cause to be sent by facsimile, notice to each Holder of Notes to be
redeemed pursuant to Section 3.3 (or such shorter period as the Trustee may agree to in writing),
the Company shall notify the Trustee in writing of the Redemption Date, the principal amount of
Notes to be redeemed and the redemption price, and deliver to the Trustee an Officers’ Certificate
stating that such redemption will comply with the conditions contained in Section 3.7 or Section
3.8, as the case may be.




          SECTION 3.2.   Selection by Trustee of Notes to Be Redeemed. In the event that fewer
than all of the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed, if the
Notes are listed on a national securities exchange, in accordance with the rules of such exchange
or, if the Notes are not so listed, on a pro rata basis. As soon as practicable but not less than 5
days prior to the Redemption Date (or such shorter period as the Company may agree to in writing),
the Trustee shall notify the Company of the Notes selected for redemption and, in the case of any
Notes selected for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture unless the context otherwise requires, provisions of this Indenture that
apply to Notes called for redemption also apply to portions of Notes called for redemption.




          SECTION 3.3.   Notice of Redemption. At least 5 days, but no more than 30 days, before a Redemption
Date, the Company shall
mail, or cause to be mailed, a notice of redemption by first-class mail to each Holder of Notes to
be redeemed at his last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.3 hereof, or



49









 






send by facsimile or cause to be sent by facsimile a
notice of redemption to each Holder of Notes to be redeemed to a facsimile number, if any,
appearing on the registry books maintained by the Registrar pursuant to Section 2.3 hereof. For
Holders of Physical Notes for which the Company does not have an address or facsimile number,
neither the Company nor the Trustee shall be required to provide such Holder with a notice of
redemption pursuant to this Section 3.3. For purposes of providing notice under this Section 3.3,
the Trustee is under no obligation and has no duty to determine whether a Holder has provided the
Company with an address or facsimile number for use in the register of Notes or whether the
register of Notes contains an address or facsimile number for each Holder.




     The notice shall identify the Notes to be redeemed (including the CUSIP number(s) thereof) and
shall state:



               (a) the Redemption Date;



               (b) the redemption price and the amount of accrued interest, if any, to be paid (or the method
by which any such amount of accrued interest to be paid is to be calculated);



               (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to
be redeemed and that, after the Redemption Date and upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion will be issued;



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



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



               (f) that unless the Company defaults in making the redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date and that the only remaining
right of the Holders of such Notes is to receive payment of the redemption price upon surrender to
the Paying Agent of the Notes redeemed; and



               (g) the aggregate principal amount of Notes that are being redeemed.



     At the Company’s request, the Trustee shall, with respect to any Global Notes, or Physical
Notes for which the Registrar has an address or facsimile number for the Holder of such Physical
Notes reflected in the register of Notes maintained by the Registrar pursuant to Section 2.3
hereof, give the notice of redemption in the Company’s name and at the Company’s expense.



     SECTION 3.4.   Effect of Notice of Redemption. Once the notice of redemption
described in Section 3.3 is mailed or transmitted as provided herein, Notes called for redemption
become due and payable on the Redemption Date and at the redemption price, including any premium, plus interest accrued and unpaid to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption
price, including any premium, plus interest accrued and unpaid to the Redemption Date,
provided, further, that such interest shall accrue in accordance with paragraph 1
of the reverse side of the Notes but shall be payable all in



50









 







cash; provided,
further, that if the Redemption Date is after a regular interest payment record date and on
or prior to the applicable Interest Payment Date, the accrued and unpaid interest shall be payable
to the Holder of the redeemed Notes registered on the relevant record date, and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such Redemption Date to
such succeeding Business Day. Payment of the redemption price in respect of Physical Notes shall
be made by check mailed to each Holder thereof sent to such Holder’s address as shall have been
provided to the Trustee by the Company or the Holder. No payment of the redemption price in
respect of Physical Notes shall be made until such address information has been received by the
Trustee. The Trustee shall not be obligated to confirm any such address it receives.



          SECTION 3.5.   Deposit of Redemption Price. On or prior to 10:00 a.m., New York City
time, on each Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of and accrued and unpaid interest on
all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for cancellation.




     On and after any Redemption Date, if money sufficient to pay the redemption price of and
accrued interest on Notes called for redemption shall have been made available in accordance with
the preceding paragraph and payment thereof is not prohibited pursuant to the terms of this
Indenture, the Notes called for redemption will cease to accrue interest and the only right of the
Holders of such Notes will be to receive payment of the redemption price of and, subject to the
first proviso in Section 3.4, accrued and unpaid interest on such Notes to the Redemption Date
regardless of whether the Holder has received actual notice of such redemption. If any Note called
for redemption shall not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest not paid on such
unpaid principal, in each case, at the rate and in the manner provided in the Notes.



          SECTION 3.6.   Notes Redeemed in Part. Upon surrender of a Note that is redeemed in
part, the Trustee shall authenticate for a Holder a new Note equal in principal amount to the
unredeemed portion of the Note surrendered. If the pro rata redemption would result in a Holder
receiving a remaining interest in a Note with an interest of less than a dollar integral, the
principal amount of the new Notes received by the Holder will be rounded up to the nearest dollar
integral.




          SECTION 3.7.   Optional Redemption. The Company may redeem the Notes, in whole or in part, at any time after the
Effective Date
at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid
interest to the Redemption Date.




          SECTION 2.8.   Mandatory Redemption. (a)  Commencing with the fiscal year of the
Company ending December 31, 2008, the sum of:





     (i) an amount equal to the Applicable Amount of the Adjusted Excess Cash Flow
for such fiscal year of the Company; and



51









 






     (ii) an amount equal to the Applicable Amount of the Adjusted Positive EBITDA
Variance for such fiscal year of the Company;


(such amount, the “Cash Sweep Amount”) shall be applied to redeem the Notes on a pro rata basis at
a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid
interest to the Redemption Date, on a Redemption Date that shall be no later than April 15 of the
year immediately following such fiscal year (such redemption, a “Mandatory Redemption”).
Notwithstanding the foregoing, prior to any Mandatory Redemption, the Company shall first use the
Cash Sweep Amount, if any, to the extent the Company is required by the terms of the Exit Facility,
the Senior Loan Facility, the Additional Liquidity Facility or the Intercreditor Agreement, to
prepay, repay, redeem or purchase Exit Facility Indebtedness, Senior Loan Facility Indebtedness or
Additional Liquidity Facility Indebtedness (as applicable) of the Company or Exit Facility
Indebtedness, Senior Loan Facility Indebtedness or Additional Liquidity Facility Indebtedness (as
applicable) of a Wholly-Owned Subsidiary (in each case, other than any such Indebtedness owed to
the Company or an Affiliate of the Company).




          (b) A Mandatory Redemption shall not be required if such Redemption would be prohibited by the
terms of the Exit Facility, the Senior Loan Facility or the Additional Liquidity Facility, or the
Intercreditor Agreement.




ARTICLE 4




COVENANTS




          SECTION 4.1.   Payment of Notes. The Company shall pay, or cause to be paid, the
principal of, and premium, if any, and interest on, the Notes on the dates and in the manner
provided herein and in the Notes. The principal, premium, if any, or cash interest shall be
considered fully 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 thereof) holds on that date money (in accordance
with paragraph 1 of the reverse side of the Notes) designated for and sufficient to pay such
principal, premium, if any, or cash interest, as the case may be.




          Any PIK Payment shall be considered fully paid on the date it is due if on such date (1) if
the PIK Payment is made by issuance of PIK Notes, such PIK Notes in the required amount of PIK Interest have been authenticated and delivered in accordance with the terms of
this Indenture, or (2) if the PIK Payment is made by increasing the principal amount of Global
Notes then authenticated, the Trustee has increased the principal amount of Global Notes previously
authenticated by the required amount of PIK Interest.




          The Company shall pay interest on overdue principal (including post-petition interest in any
proceeding under any Bankruptcy Law) and on overdue installments of interest at the Default
Interest rate as defined in paragraph 1 of the reverse side of the Notes, to the extent lawful.




          SECTION 4.2. SEC Reporting. The Company shall file with the SEC all information,
documents and reports to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act,
whether or not the Company is subject to such filing requirements, so long as



52









 






the SEC will accept such filings on or prior to the respective dates (such dates, including any extension granted by
the SEC, the “Required Filing Dates”) by which the Company would have been or is required to so
file such documents. The Company (at its own expense) shall also in any event within 15 days after
each Required Filing Date (i) transmit by mail to all Holders, at their addresses appearing in the
register of Notes maintained by the Registrar and (ii) file with the Trustee copies of the annual
reports and of the information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the Company files with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act or would be required to file with the SEC
if it were subject to Section 13 or 15(d) of the Exchange Act. The Company shall comply with the
provisions of TIA Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).




          SECTION 4.3.   Waiver of Stay, Extension or Usury Laws. The Company and each
Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead (as a defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which would prohibit or
forgive the Company or such Guarantor, as the case may be, from paying all or any portion of the
principal of, premium, if any, and/or interest on the Notes as contemplated herein and/or in the
Notes, wherever enacted, now or at any time hereafter in force, or which may affect the covenants
or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company
and each Guarantor expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.




          SECTION 4.4.   Compliance Certificates. (a)  The Company and each Guarantor (to the extent that such
Guarantor is so required under
the TIA) shall deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officers’ Certificate (one of the signers of which shall be the principal executive officer,
principal financial officer or principal accounting officer of the Company or such Guarantor, as
the case may be) complying with Section 314(a)(4) of the TIA stating that a review of the
activities of the Company or such Guarantor, as the case may be, during such fiscal year has been
made under the supervision of the signing Officers with a view to determining whether the Company
or such Guarantor, as the case may be, has kept, observed, performed and fulfilled its obligations
under the Security Documents and this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of such Officer’s knowledge the Company or such
Guarantor, as the case may be, has kept, observed, performed and fulfilled each and every covenant
contained in the Security Documents in all material respects and this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions thereof or
hereof (determined without regard to any period of grace or requirement of notice provided herein),
or, if a Default or Event of Default shall have occurred, describing all or such Defaults or Events
of Default of which such Officer may have knowledge and what action the Company or such Guarantor,
as the case may be, is taking or proposes to take with respect thereto.



53









 







          (b) The Company will, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any officer’s becoming aware of any Default or Event of Default, an Officers’
Certificate specifying the nature and extent of the same in reasonable detail and what action the
Company or the Guarantors, as the case may be, is taking or proposes to take with respect thereto.




          (c) The Company will, so long as any of the Notes are outstanding, deliver to the Trustee, no
later than 45 days after the end of each of its fiscal quarters (75 days in the case of the last
fiscal quarter of its fiscal year), an Officers’ Certificate substantially in the form of Exhibit
D, specifying the Company’s Consolidated Senior Leverage Ratio in accordance with paragraph 1 of
the reverse side of the Notes and the terms of this Indenture. The foregoing obligation shall
terminate after the earlier to occur of (i) the fifth anniversary of the Effective Date and (ii)
the date of delivery of such a certificate certifying that the Company’s Consolidated Senior
Leverage Ratio was less than 2.75:1.00 in accordance with paragraph 1 of the reverse side of the
Notes and the terms of this Indenture.




          SECTION 4.5.   Taxes. The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon it or its Subsidiaries’ income, profits or property and (b) all
lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon
their property; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or claim (1) whose
amount, applicability or validity is being contested in good faith by appropriate negotiations or
proceedings or (2) the failure to pay or discharge would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.




          SECTION 4.6.   Corporate Existence. Subject to Article 5 hereof, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries,
in accordance with the respective organizational documents (as the same may be amended from time to
time) of its Subsidiaries and the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Company determines that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a
whole.




          SECTION 4.7.   Maintenance of Insurance. (a) The Company and each of its
Subsidiaries shall provide or cause to be provided, for itself and each of their respective
Subsidiaries, insurance that is adequate and appropriate for the conduct of the business of the
Company and such Subsidiaries in a prudent manner, with reputable insurers or with the government
of the United States of America or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary for and available to businesses similarly
situated in the industry.




          (b) The Company shall cause the Collateral Trustee to at all times be named as loss payee with
respect to all “All Risk” insurance policies and an additional insured (but



54









 






without any liability for premiums) under all general liability insurance policies maintained pursuant to Section 4.7(a).




          SECTION 4.8.   Inspection of Books and Records; Compliance with Laws. (a)  The Company
shall and shall cause each of its Subsidiaries to keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the assets and business of
the Company and each Subsidiary of the Company, in accordance with GAAP consistently applied to the
Company and its Subsidiaries on a consolidated basis or in the case of any Foreign Subsidiary, the
foreign equivalent of GAAP in the jurisdiction of organization or location.




          (b) The Company shall and shall cause each of its Subsidiaries to comply with all statutes,
laws, ordinances, or government rules and regulations to which they are subject, noncompliance with
which would materially adversely affect the business, properties, operations or financial condition
of the Company and its Subsidiaries taken as a whole.




          SECTION 4.9.   Additional Pledges. (a) If on or after the Effective Date, the
Company or any Subsidiary pledges property or assets to secure obligations under the Senior Loan
Agreement, the Exit Facility or the Additional Liquidity Facility (other than pursuant to the
Security Documents or as contemplated by the Senior Loan Agreement, the Exit Facility and the
Additional Liquidity Facility, each as in effect on the Effective Date) then such property or
assets shall also secure the Notes. In the event the Senior Loan Facility Indebtedness, the Exit
Facility Indebtedness and the Additional Liquidity Facility Indebtedness cease to be outstanding and the commitments under the Senior
Loan Agreement, the Exit Facility Agreement and the Additional Liquidity Facility (and any
replacement or successor agreement) are terminated, promptly (and in any event within ten (10)
Business Days) after the creation or acquisition by the Company of a new Subsidiary that becomes a
Guarantor pursuant to Section 4.22, the Company shall cause such Subsidiary to become a party to
the Security Documents and the Company or Guarantor that is such new Guarantor’s direct parent
company shall execute a pledge agreement in form and substance reasonably satisfactory to the
Trustee and pursuant to which all the Capital Stock of such new Guarantor shall be pledged to the
Trustee (for the benefit of the Holders) to secure the Obligations and such other related documents
as the Trustee may request, all in form and substance satisfactory to the Trustee.




          (b) Within 90 days after the Effective Date (or such longer period as the Exit Facility Agent
may agree in its reasonable discretion), the Company shall execute and deliver Foreign Pledge
Agreements in respect of the Capital Stock of each of the Foreign Subsidiaries listed on Schedule
8, if and to the extent that such Capital Stock then constitutes Collateral (as defined in the
Collateral Agreement).




          SECTION 4.10.   Limitation on Additional Indebtedness. The Company will not, and will
not permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness); provided, however, that the Company or any Guarantor may
incur Indebtedness (including Acquired Indebtedness but excluding Designated Senior Debt) if (i)
after giving effect on a pro forma basis to the incurrence of such Indebtedness and, to the extent
set forth in the definition of Consolidated Debt Service Coverage Ratio, the receipt and
application of the proceeds thereof, (A) for any period ending prior to, but not including, the
last



55









 






day of the thirteenth fiscal quarter after Effective Date, the Company’s Consolidated Debt
Service Coverage Ratio would be greater than 1.5 to 1, and (B) for any period beginning on or after
the thirteenth fiscal quarter after Effective Date, the Company’s Consolidated Debt Service
Coverage Ratio would be greater than 1.1 to 1, and (ii) no Default or Event of Default shall have
occurred and be continuing at the time or as a consequence of the incurrence of such Indebtedness.





     The foregoing paragraph shall not prohibit the incurrence of the following:




     (i) Indebtedness in connection with the Notes, the Guarantees and any and PIK
Notes issued from time to time as payment of PIK Interest on the Notes and any
increase in the principal amount of Notes as a result of a PIK Payment;




     (ii) [RESERVED];




     (iii) Indebtedness incurred pursuant to the Exit Facility, Senior Loan Facility
and the Additional Liquidity Facility in an aggregate principal amount at any time
outstanding not to exceed the Designated Senior Debt Limit;




     (iv) Purchase Money Indebtedness and other Indebtedness (including, without
limitation, Capital Lease Obligations) incurred after the Effective Date to finance
the acquisition of fixed or capital assets provided that the aggregate
principal amount of Indebtedness Incurred in reliance on this clause (iv) shall
not exceed $100,000,000 in any fiscal year of the Company;




     (v) (A) Guarantee Obligations of any Group Member of Indebtedness of any Loan
Party, (B) Guarantee Obligations of any Subsidiary that is not a Guarantor of
Indebtedness of any other Subsidiary that is not a Guarantor and (C) Guarantee
Obligations of any Group Member in respect of any Foreign Credit Facility and other
Indebtedness of any Excluded Subsidiary permitted under clause (xxvi) below;




     (vi) (i) Indebtedness of the Company to any Subsidiary and of any Guarantor to
any Group Member, (ii) Indebtedness of any Subsidiary that is not a Guarantor to any
other Subsidiary that is not a Guarantor and (iii) any Intercompany Loan Owed to
U.K. Subsidiaries;




     (vii) (a) Indebtedness outstanding on the date hereof and listed on Schedule 5
and (b) any refinancings, replacements, refundings, renewals or extensions thereof
(without increasing, or shortening the maturity of, the principal amount thereof);
provided that this clause (vii) shall not permit the incurrence of any new
Indebtedness to refinance, replace, refund, renew or extend any Indebtedness owing
to a Group Member unless the obligee on such new Indebtedness is also a Group
Member;




     (viii) Indebtedness of a Subsidiary of the Company Incurred and outstanding on
or prior to the date on which such Subsidiary was acquired by the Company;
provided, however, that on the date of such acquisition and after
giving



56









 







pro forma effect thereto, the Company would have been able to Incur at least
$1.00 of additional Indebtedness pursuant to clause (i) of the first paragraph of
this Section 4.10 (except that the foregoing proviso shall not apply to the extent a
Subsidiary of the Company would have been able to Incur such Indebtedness pursuant
to the Senior Loan Agreement as in effect on the date hereof);




     (ix) Indebtedness in respect of Interest Rate Agreements, Currency Agreements
and Swap Agreements; provided that the notional principal amount related to
any Interest Rate Agreement does not exceed the principal amount of the Indebtedness
to which any Interest Rate Agreement relates;




     (x) (a) Indebtedness (including Guarantee Obligations) incurred by the Company
and the U.K. Subsidiaries in connection with the Company Voluntary Arrangements, the
U.K. Settlement Agreement and financing the retention of the Intercompany Notes, and
(b) Intercompany Loans from T&N Limited to any other U.K. Subsidiary or from any
U.K. Subsidiary to T&N Limited in the ordinary course of business and solely in
connection with the establishment and operation of the consolidated cash management
system of the U.K. Subsidiaries;




     (xi) Indebtedness incurred to fund Joint Venture Put Obligations relating to
Turkish Joint Ventures in an aggregate outstanding principal amount not to exceed at
any date $200,000,000;




     (xii) Indebtedness in respect of netting services, overdraft protections and
otherwise in connection with Deposit Accounts;




     (xiii) Refinancing Notes, provided, however, that the net
proceeds thereof shall be used within one Business Day of receipt to satisfy and
repay the Notes in full;




     (xiv) Indebtedness incurred by a Securitization Entity in a Qualified
Securitization Transaction that is not recourse to the Company or any Subsidiary of
the Company (except for Standard Securitization Undertakings);




     (xv) Guarantees in the ordinary course of business of the obligations of
suppliers, customers, franchisees and licensees of the Company and its Subsidiaries;




     (xvi) Indebtedness incurred in the ordinary course of business under travel and
expense cards, corporate purchasing cards and car leasing programs, and Guarantee
Obligations of the Company with respect to any such Indebtedness;




     (xvii) Indebtedness represented by performance bonds, warranty or contractual
service obligations, standby letters of credit or appeal bonds, in each case to the
extent incurred in the ordinary course of business of the Company and its
Subsidiaries;



57









 







     (xviii) Indebtedness outstanding on the date hereof;




     (xix) Permitted Subordinated Indebtedness provided that the net
proceeds therefrom are used in compliance with the Exit Facility Agreement and the
Senior Loan Agreement as in effect on the date hereof;




     (xx) Indebtedness (whether intercompany or third-party) incurred in the
ordinary course of business in connection with Liens created in the ordinary course
of business in favor of banks and other financial institutions over credit balances
of any bank accounts of any Group Member held at such banks or financial
institutions, as the case may be, to facilitate the operation of cash pooling and/or
interest set-off arrangements in respect of such bank accounts in the ordinary
course of business;




     (xxi) Indebtedness secured by Permitted Liens set forth in clauses (v), (vi),
(vii), (viii) (to the extent deemed Indebtedness), (xii), (xx) and (xxviii) of the
definition thereof;




     (xxii) Indebtedness of the Group Members, in an aggregate amount not to exceed
$300,000,000, issued on the Effective Date in satisfaction of the Other Unsecured
Claims pursuant to the Reorganization Plan;




     (xxiii) (a) Indebtedness of any Excluded Subsidiary to the Company or any
Guarantor existing on the Effective Date and (b) additional Indebtedness of any
Excluded Subsidiary to the Company or any Guarantor Incurred after the Effective
Date and consisting of Intercompany Loans permitted under clause (xvii)(b) of the
definition of “Permitted Investments”;




     (xxiv) Intercompany Loans incurred in order to consummate the Tax Restructuring
(including any Intercompany Loans arising solely as a result of the
recharacterization as Indebtedness of any equity Investment made by any Group Member
in any other Group Member and permitted by Section 4.15);




     (xxv) Indebtedness of any Group Member owed to any other Group Member and
arising solely as a result of the recharacterization as Indebtedness of any equity
Investment made by any Group Member in any other Group Member and permitted by
Section 4.15; or




     (xxvi) Indebtedness not otherwise permitted to be incurred pursuant to clauses
(i) through (xxv) above, which, together with any other Indebtedness incurred
pursuant to this clause (xxvi), has an aggregate principal amount any time
outstanding not in excess of $1,000,000,000.



     For purposes of determining compliance with, and the outstanding principal amount of a
particular Indebtedness incurred pursuant to and in compliance with this Section 4.10, in the event
such Indebtedness meets the criteria of more than one of the types of Indebtedness described in the
first paragraph of this Section 4.10 or in clauses (i) through (xxvi) of the second paragraph of
this Section 4.10, (a) the Company, in its sole discretion, shall classify such item of



58









 







Indebtedness and only be required to include the amount and type of such Indebtedness either in the
first paragraph of this Section 4.10 or one of such clauses in the second paragraph of this Section
4.10, or any combination thereof, and (b) the Company, in its sole discretion, may reclassify such
item of Indebtedness under a different paragraph or clause of this Section 4.10 so long as such
Indebtedness met the criteria of such paragraph or clause on the date on which it was Incurred.



          SECTION 4.11.   Limitations on Additional Liens. Subject to Section 4.9, the Company
will not, and will not permit any of its Subsidiaries to, create, incur or otherwise cause or
suffer to exist or become effective any Liens of any kind (other than Permitted Liens) upon any
property or asset of the Company or any Subsidiary or any shares of stock or debt of any Subsidiary
which owns property or assets, now owned or hereafter acquired, or any income or profits therefrom
in each case, as Security for any Indebtedness, unless (i) if such Lien secures Indebtedness which
is pari passu with the Notes, then the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligations are no longer secured by a Lien or (ii)
if such Lien secures Subordinated Indebtedness, any such Lien shall be subordinated to a Lien on such property or asset or shares of stock or debt granted to the
Holders of the Notes to the same extent as such Subordinated Indebtedness is subordinated to the
Notes.




     SECTION 4.12.   Limitation on Certain Asset Sales. Neither the Company nor any of its
Subsidiaries will consummate or permit, directly or indirectly, any Asset Sale, unless:




     (i) the Company or such Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value, as
determined in good faith by the Company (including as to the value of all non-cash
consideration), of the shares and assets subject to such Asset Sale;




     (ii) at least 66 2/3% of the consideration from such Asset Sale received by the
Company or such Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided, that up to an aggregate of $25,000,000 of Asset Sales
per fiscal year shall not be subject to the requirements of this clause (ii); and




     (iii) with respect to any Net Cash Proceeds related to Collateral in the form
of cash or Cash Equivalents (including cash collected on any notes), and any
Insurance Proceeds or Condemnation Proceeds on account of any separate loss of any
Collateral of the Company or its Subsidiaries in excess of $50,000,000 during any
fiscal year which are not applied to the repair, rebuilding, restoration or
replacement of the Collateral affected by the subject Loss Event, (in any such case,
the “Collateral Proceeds Amount”), the Company shall either (i) first, to the extent
the Company elects (or is required by the terms of any such Indebtedness or the
Intercreditor Agreement), prepay, repay, redeem or purchase Exit Facility
Indebtedness, Senior Loan Facility Indebtedness or Additional Liquidity Facility
Indebtedness of the Company or Exit Facility Indebtedness, Senior Loan Facility
Indebtedness or Additional Liquidity Facility Indebtedness of a Wholly-Owned
Subsidiary (in each case, other than any such Indebtedness owed to the Company or an
Affiliate of the Company) within 365 days from the later of the date of such Asset
Sale or the receipt of such Collateral Proceeds



59









 







Amount; provided,
however, that in connection with any prepayment, repayment or purchase of
Exit Facility Indebtedness or Senior Loan Facility Indebtedness pursuant to this
clause (i), the Company or such Wholly-Owned Subsidiary will retire such
Indebtedness and will cause the related loan commitment (if any) to be permanently
reduced in an amount equal to the principal amount so prepaid, repaid or purchased
pursuant to such election or, (ii) second, to the extent the Company elects, apply
the Collateral Proceeds Amount to acquire property (provided that, in the
case of an Asset Sale of property constituting Collateral under the Security
Documents, the Company shall cause such property to become Collateral under the
Security Documents, to the extent required therein, as and when received by the
Company or by any of its Subsidiaries promptly thereafter), that is useful in any
business in which the Company or any Wholly-Owned Subsidiary is permitted to be
engaged within 365 days from the later of the date of such Asset Sale or the receipt
of such Collateral Proceeds Amount and (iii) third, to the extent the Company does not apply Collateral Proceeds Amount pursuant to
clauses (i) and (ii) above, make an offer (a “Collateral Proceeds Offer”) for up to
a maximum principal amount (expressed as an integral multiple of $1,000) of Notes
equal to the Collateral Proceeds Amount to the extent of the balance of such
Collateral Proceeds Amount after application in accordance with clauses (i) and
(ii), at a purchase price equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of purchase in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate principal
amount of Notes tendered pursuant to such Collateral Proceeds Offer is less than the
Collateral Proceeds Amount, the Company may use such portion of the Collateral
Proceeds Amount that is not used to purchase Notes tendered for general corporate
purposes not inconsistent with the Notes or this Indenture. If the aggregate
principal amount of the Notes tendered pursuant to such Collateral Proceeds Offer is
more than the Collateral Proceeds Amount, the Notes tendered will be repurchased on
a pro rata basis or by such other method as the Trustee shall deem fair and
appropriate. Upon the completion of any Collateral Proceeds Offer and the closing of
any repurchase of Notes tendered pursuant to such Collateral Proceeds Offer, the
amount of Collateral Proceeds Amount shall be deemed to be zero.



     If the Company is required to make a Collateral Proceeds Offer, the Company shall mail, within
30 days following the date on which the Company becomes obligated to make a Collateral Proceeds
Offer pursuant to clause (iii) of the immediately preceding paragraph, notice to the holders of the
Notes stating, among other things: (1) that such holders have the right to require the Company to
apply the Collateral Proceeds Amount to repurchase such Notes at a purchase price in cash equal to
100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of
purchase; (2) the purchase date, which shall be no earlier than 30 days and not later than 60 days
from the date such notice is mailed; (3) the instructions, determined by the Company, that each
holder of Notes must follow in order to have such Notes repurchased; and (4) the calculations used
in determining the amount of Collateral Proceeds Amount to be applied to the repurchase of such
Notes.




60












 





     Pending their use as hereinabove prescribed, all Net Cash Proceeds from Asset Sales of
property constituting Collateral, Insurance Proceeds and Condemnation Proceeds from Loss Events and
non-cash consideration from Asset Sales of property constituting Collateral, including all
Collateral Proceeds Amounts, shall be applied as provided for under the Security Documents.



     With respect to any disposition of assets or property permitted pursuant to this Section 4.12
and this Indenture, the Trustee agrees on reasonable prior written notice to release its Lien on
such assets or other properties in order to permit the Company or Subsidiary, as applicable, to
effect such disposition and shall execute and deliver to the Company, at its expense, appropriate
UCC termination statements and other releases as reasonably requested by the Company.



     To the extent that the provisions of any securities laws or regulations conflict with
provisions of this covenant, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this covenant by virtue
thereof.



          SECTION 4.13.   Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries. The Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any of its Subsidiaries to (a) pay
dividends or make any other distributions in cash or otherwise on its Capital Stock to the Company
or any Subsidiary, (b) pay any Indebtedness owed to the Company or any Subsidiary, (c) make loans
or advances to the Company or any Subsidiary thereof, (d) transfer any of its properties or assets
to the Company or any Subsidiary thereof (other than customary restrictions on transfer of property
subject to a Permitted Lien under the term of the agreements creating such Permitted Lien (other
than a Lien on cash not constituting proceeds of non-cash property subject to a Permitted Lien)
which would not materially adversely affect the Company’s ability to satisfy its obligations under
the Notes), or (e) guarantee any Indebtedness of the Company or any Subsidiary of the Company,
except, in each case, for such encumbrances or restrictions existing under or contemplated by
reason of (i) the Notes or this Indenture, (ii) any restrictions existing under or contemplated by
agreements evidencing any Exit Facility Indebtedness, Additional Liquidity Facility Indebtedness or
Senior Loan Facility Indebtedness, (iii) any restrictions which are in existence on the Effective
Date or which exist with respect to a Person that becomes a Subsidiary on or after the Effective
Date, which are in existence at the time such Person becomes a Subsidiary of the Company (but not
created in connection with or contemplation of such Person becoming a Subsidiary of the Company and
which encumbrance or restriction is not applicable to any Person or the property or assets of any
Person other than such Person or the property or assets of such Person so acquired) and any
agreement that refinances or replaces the same; provided, however, that the terms
and conditions of any such restrictions are not materially less favorable in the aggregate to the
holders of the Notes than those under or pursuant to the agreement being replaced or the agreement
evidencing the Indebtedness refinanced or replaced, (iv) customary non-assignment provisions in any
contract or licensing agreement entered into by the Company or any Subsidiary of the Company in the
ordinary course of business or in any lease governing any leasehold
interest of the Company or a Subsidiary, (v) any restrictions existing under or contemplated by agreements evidencing any
Purchase Money Indebtedness that impose restrictions on the ability of any of the Company or



61









 






its
Subsidiaries to transfer the property so acquired to the Company or its Subsidiaries, (vi) any
restrictions existing under or contemplated by Indebtedness or other contractual requirements of a
Securitization Entity in connection with a Qualified Securitization Transaction; provided
that such restrictions apply only to such Securitization Entity, (vii) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection
with the disposition of all or substantially all of the Capital Stock or assets of such Subsidiary,
(viii) any restriction that exists or may arise directly as a result of the Company Voluntary
Arrangements, (ix) any restrictions (other than those described in the preceding clauses) in
existence on the date hereof, (x) any restrictions relating to Excluded Subsidiaries imposed in
connection with the Indebtedness incurred by the Excluded Subsidiaries and permitted under Section
4.10, (xi) any restrictions contained in any agreements to which any Subsidiary that is not a
wholly-owned Subsidiary is a party so long as such restrictions apply solely to such Subsidiary or
any of its Subsidiaries and (xii) any restrictions existing under or contemplated by agreements
evidencing any Indebtedness permitted under clause (vii)(b) of the second paragraph of Section
4.10, providing that the restrictions contained in the agreements governing such Indebtedness are
no more restrictive in whole than those contained in the agreements governing the Indebtedness
being refinanced, replaced, refunded, renewed or extended.




          SECTION 4.14.   Limitation on Restricted Payments. The Company will not, and will not permit any of its
Subsidiaries to, directly or
indirectly, make, any Restricted Payment, unless




          (a) no Default or Event of Default shall have occurred and be continuing at the time of and
immediately after giving effect to such Restricted Payment;




          (b) immediately after giving pro forma effect to such Restricted Payment, the Company could
incur $1.00 of additional Indebtedness under the first paragraph of Section 4.10 hereof; and




          (c) immediately after giving effect to such Restricted Payment, the aggregate of all
Restricted Payments declared or made after the Effective Date through and including the date of
such Restricted Payment (the “Base Period”) (excluding Restricted Payments permitted by clauses
(ii) and (iv) through (ix) below) does not exceed the sum of (1) 50% of the Company’s Consolidated
Net Income (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such
deficit) during the Base Period, (2) 100% of the aggregate Net Cash Proceeds from the issue or sale
during the Base Period of Capital Stock (other than Disqualified Capital Stock or Capital Stock of
the Company issued to any Subsidiary of the Company) of the Company or any Indebtedness of the
Company convertible into or exercisable or exchangeable for Capital Stock (other than Disqualified
Capital Stock) of the Company which has been so converted or exercised or exchanged, as the case
may be, and (3) the aggregate Net Cash Proceeds received by the Company or any Subsidiary from the
sale, disposition or repayment, other than to the Company or a Subsidiary, of any Investment made
after the Effective Date and constituting a Restricted Payment in an amount equal to the lesser of
(x) the return of capital with respect to such Investment and (y) the initial amount of such
Investment, in either case, less
the cost of disposition of such Investment. For purposes of determining under this clause (c)
the amount expended for Restricted Payments, cash distributed shall be valued by the face amount
thereof and property other than cash will be valued at its fair market value.




62









 








     The provisions of this Section 4.14 shall not prohibit:




     (i) the agreement or commitment to make any payment or distribution permitted
under this Indenture or the payment or distribution so agreed or committed to be
made as long as such payment or distribution is made on the date of such agreement
or commitment or within 60 days thereof; provided, however, that on
the date of such agreement or commitment such payment would comply with the
foregoing provisions, it being understood that the agreement or commitment to make
such payment or distribution shall constitute Indebtedness permitted under the
second paragraph of Section 4.10;




     (ii) the retirement of any Capital Stock of the Company or Subordinated
Indebtedness of the Company by conversion into or by an exchange for Capital Stock
(other than Disqualified Capital Stock), or out of the Net Cash Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of other
Capital Stock of the Company (other than Disqualified Capital Stock);
provided that Net Cash Proceeds of such Capital Stock so used shall not be
included under clause (c)(2) above;




     (iii) the redemption or retirement of Subordinated Indebtedness of the Company
in exchange for, by conversion into, or out of the Net Cash Proceeds of, a
substantially concurrent sale or incurrence of Indebtedness (other than any
Indebtedness owed to a Subsidiary of the Company) that is contractually subordinated
in right of payment to the Notes to at least the same extent as the Subordinated
Indebtedness being redeemed or retired;




     (iv) the purchase, redemption or other acquisition for value of shares of
Capital Stock of the Company or its Subsidiaries (other than Disqualified Capital
Stock) or options or warrants with respect to such shares held by the Company’s or
the Subsidiaries’ officers, directors or employees or former officers, directors or
employees (or their estates or beneficiaries under their estates) upon the death,
disability, retirement or termination of employment of such current or former
officers, directors or employees pursuant to the terms of an employee benefit plan
or any other agreement pursuant to which such shares of Capital Stock or options or
warrants were issued or pursuant to a severance, buy-sell or right of first refusal
agreement with such current or former officer, director or employee;




     (v) the retirement of any Disqualified Capital Stock by conversion into, or by
exchange for, shares of Disqualified Capital Stock, or out of the Net Cash Proceeds
of the substantially concurrent sale (other than to a Subsidiary of the Company) of
other Disqualified Capital Stock;




     (vi) Restricted Payments contemplated under the Tax Restructuring;




     (vii) Restricted Payments provided for in the Reorganization Plan to be made on
or as of the Effective Date;



63









 






     (viii) the use of the amount of Adjusted Positive EBITDA Variance for any
fiscal year of the Company not required to be applied pursuant to Section 3.8 hereof
or pursuant to Section 2.5(e) of the Senior Loan Agreement or pursuant to Section
2.16(e) of the Exit Facility Agreement, in each case in effect on the date hereof,
or not applied to consummate Permitted Open Market Purchases, for purposes other
than the general corporate purposes of the Group Members, provided that in
any fiscal year of the Company where the Notes are redeemed from Adjusted Excess
Cash Flow pursuant to Section 3.8, any Group Member may use such amount of Adjusted
Positive EBITDA Variance to make, in such year or any other year thereafter,
(i) Restricted Payments not otherwise permitted under clauses (i) through (vii) or
clauses (ix) and (x) of this Section 4.14;




     (ix) a Restricted Payment by any Subsidiary to Persons directly owning Minority
Interests, if such Subsidiary shall first have made, or shall substantially
simultaneously make, a Restricted Payment to the Group Member which has an ownership
interest in such Subsidiary in an amount not less than such Group Member’s
proportionate share (based upon such Group Member’s percentage ownership interest in
such Subsidiary) of the total Restricted Payment to be made by such Subsidiary;




     (x) to the extent any such payments are made in a manner that would cause them
to be Restricted Payments, the Company may make payments to members of management
pursuant to compensation arrangements typical of companies of similar size and
scope;




     (xi) any Group Member may make Restricted Payments in connection with the
Company Voluntary Arrangements, the retention of the Intercompany Loan Notes
(without limiting payments relating to Intercompany Loan Notes in connection with
the Tax Restructuring), and the U.K. Dissolution; or




     (xii) other than Restricted Payments set forth in clause (iv) of the definition
of Restricted Payments, Restricted Payments in an amount not to exceed $25,000,000;
provided that the amount of such Restricted Payments will be included in the
calculation of the amount of Restricted Payments;


provided, however, that in the case of the immediately preceding clauses (ii),
(iii), (viii) and (xii), no Default or Event of Default shall have occurred and be continuing at
the time of such Restricted Payment or would occur as a result thereof.




     In determining the aggregate amount of Restricted Payments made subsequent to the Effective
Date for purposes of clause (c) above, amounts expended pursuant to clauses (i) and (ii) of the
immediately preceding paragraph shall be included, but without duplication, in such calculation.



     For purposes of calculating the Net Cash Proceeds received by the Company from the issuance or
sale of its Capital Stock either upon the conversion of, or in exchange for, Indebtedness of the
Company or any Subsidiary, such amount will be deemed to be an amount



64









 







equal to the difference of
(a) the sum of (i) the principal amount or accreted value (whichever is less) of such Indebtedness
on the date of such conversion or exchange and (ii) the additional cash consideration, if any,
received by the Company upon such conversion or exchange, plus any payment on account of fractional
shares, minus (b) all commissions, fees, costs and other expenses incurred in connection with such
issuance or sale. In addition, for purposes of calculating the Net Cash Proceeds received by the
Company from the issuance or sale of its Capital Stock upon the exercise of any options or warrants
of the Company, such amount shall be deemed to be an amount equal to the difference of (a) the
additional cash consideration, if any, received by the Company upon such exercise, minus (b) all
fees, commissions, discounts and expenses incurred by the Company in connection with such issuance
or sale.



          SECTION 4.15.   Limitations on Investments. The Company will not, and will not permit any of its Subsidiaries to,
make any Investment
other than (i) a Permitted Investment or (ii) an Investment that is made as a Restricted Payment in
compliance with Section 4.14 hereof.




          SECTION 4.16.   Limitation on Transactions with Affiliates. The Company will not, and will not permit any of its
Subsidiaries to, directly or
indirectly, enter into or suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate of the Company (each such transaction, an “Affiliate Transaction”) or
extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior
to the Effective Date unless (i) such Affiliate Transaction is solely between or among the Company
and its Wholly-Owned Subsidiaries that are Guarantors; (ii) such Affiliate Transaction is solely
between or among Wholly-Owned Subsidiaries of the Company that are Guarantors; (iii) such Affiliate
Transaction is for reasonable fees and compensation paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Subsidiary thereof as
reasonably determined in good faith by the Board of Directors (when required as described below) or
senior management of the Company or of such Subsidiary having no interest in such Affiliate
Transaction; or (iv) the terms of such Affiliate Transaction are fair and reasonable to the Company
or such Subsidiary, as the case may be, and the terms of such Affiliate Transaction are at least as
favorable as the terms which could be obtained by the Company or such Subsidiary, as the case may
be, in a comparable transaction made on an arm’s-length basis between unaffiliated parties, as
determined in good faith by the Company or the relevant Subsidiary. For the avoidance of doubt,
contemporaneous purchases and/or sales by a Group Member and an Affiliate of assets, Capital Stock,
bonds, notes, debentures or other debt securities, and bank loans, participations or similar
obligations at substantially the same price shall not be deemed transactions with an Affiliate
under this Indenture.




     The foregoing provisions will not apply to (i) the payment of reasonable annual compensation
to, or indemnity provided on behalf of, directors or executive officers of the Company, (ii) the
continued performance of transactions with Affiliates disclosed in the
Reorganization Plan, on the same terms as disclosed in the Reorganization Plan, (iii)
transactions effected as part of a Qualified Securitization Transaction, (iv) the Tax
Restructuring, (v) the retention of the Intercompany Loan Notes (without limiting any transactions
in connection with the Tax Restructuring) or (vi) transactions consummated pursuant to the U.K.
Dissolution or the Company Voluntary Arrangements.



65









 





          SECTION 4.17.   Sales and Leasebacks. The Company will not, and will not permit any of its Subsidiaries to, enter
into any Sale
and Leaseback Transaction unless, if the Sale and Leaseback Transaction is treated as an Asset Sale
(and not excluded as such from the definition thereof), all of the conditions of this Indenture
described in Section 4.12 above (including the provisions concerning the application of the
Collateral Proceeds Amount) are satisfied with respect to such Sale and Leaseback Transaction,
treating all of the consideration received in such Sale and Leaseback Transaction as included in
the Collateral Proceeds Amount for purposes of such covenant.




          SECTION 4.18.   Lines of Business. The Company will not, and will not permit any of its Subsidiaries to, enter
into any
business, either directly or through any Subsidiary, except for those businesses in which the Group
Members are engaged on the date of this Indenture or that are determined by the Board of Directors
of the Company to be reasonably related thereto.




          SECTION 4.19.   Limitation on Status as Investment Company. Neither the Company nor any of its Subsidiaries shall
take any action or suffer to exist
any condition that would require the Company or any of its Subsidiaries to register as an
“investment company” (as that term is defined in the Investment Company Act of 1940, as amended),
or otherwise become subject to regulation as an investment company.




          SECTION 4.20.   [Reserved].




          SECTION 4.21.   Further Assurances to the Trustee. The Company shall (and shall cause each of its Subsidiaries
to) execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register, any and all such further acts,
deeds, conveyances, security agreements, mortgages, assignments, estoppel certificates, financing
statements and continuations thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as may be required from time to time in order (i) to
carry out more effectively the purposes of the Security Documents, (ii) to subject to the Liens
created by any of the Security Documents any of the properties, rights or interest required to be
encumbered thereby, (iii) to perfect and maintain the validity, effectiveness and priority of any
of the Security Documents and the Liens intended to be created thereby, and (iv) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm to the Trustee any of the rights
granted or now or hereafter intended by the parties thereto to be granted to the Trustee or under
any other instrument executed in connection therewith or granted to the
Company under the Security Documents or under any other instrument executed in connection
therewith.




          SECTION 4.22.   Future Subsidiary Guarantors. The Company shall cause each Subsidiary, other than an Excluded
Subsidiary or a
Securitization Entity, created or acquired, directly or indirectly, by the Company after the
Effective Date to execute a supplemental indenture in the form of Exhibit B (or, in the case of a
Foreign Subsidiary, to execute a Foreign Subsidiary Guarantee in a form substantially similar to
Exhibit M and reasonably satisfactory in form and substance to the Trustee (and with documentation
relating thereto as the Trustee shall require, including, without limitation, an Opinion of Counsel
as to the enforceability of such Guarantee); provided that, subject to Section 4.26, such
Subsidiary shall not be required to execute such a supplemental indenture (or, in the case of a
Foreign



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Subsidiary, such a Foreign Subsidiary Guarantee) if such Subsidiary is an Unrestricted
Subsidiary, is prohibited by law from making such a Guarantee, such Subsidiary would have been
released from its Guarantee by virtue of events set forth in Section 11.4 hereof (including for
such purposes Foreign Subsidiaries and assuming that Section 11.4 hereof applies to such Foreign
Subsidiary mutatis mutandis), or such Subsidiary is a Subsidiary of a Person which has been
released as a Guarantor pursuant to Section 11.4 hereof (including for such purposes Foreign
Subsidiaries and assuming that Section 11.4 hereof applies to such Foreign Subsidiary mutatis
mutandis).




          SECTION 4.23.   Designation of Subsidiaries and Unrestricted Subsidiaries. (a) The Company may by written
notice to the Trustee designate any Subsidiary (including a
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary; provided,
however, that (i) no Default or Event of Default shall have occurred and be continuing or
would arise therefrom, (ii) such designation is at that time permitted under Section 4.14 hereof
and (iii) immediately after giving effect to such designation, the Company could incur $1.00 of
additional Indebtedness pursuant to the first paragraph of Section 4.10. In the event the Company
designates a Subsidiary to be an Unrestricted Subsidiary, the following provisions shall apply:





     (i) an “Investment” shall be deemed to have been made at the time any
Subsidiary is designated as an Unrestricted Subsidiary in an amount (proportionate
to the Company’s percentage Capital Stock in such Subsidiary) equal to the net worth
of such Subsidiary at the time that such Subsidiary is designated as an Unrestricted
Subsidiary;




     (ii) at any date the aggregate of all Restricted Payments made as Investments
since the Effective Date shall exclude and be reduced by an amount (proportionate to
the Company’s percentage Capital Stock in such Subsidiary) equal to the net worth of
any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Subsidiary, not to exceed, in the case of any such redesignation of an
Unrestricted Subsidiary as a Subsidiary, the amount of Investments previously made
by the Company and its Subsidiaries in such Unrestricted Subsidiary; and




     (iii) any property transferred to or from an Unrestricted Subsidiary shall be
valued at its fair market value at the time of such transfer.


For purposes of clauses (i) and (ii) above, “net worth” shall be calculated based upon the fair
market value of the assets of such Subsidiary as of any such date of designation.




          (b) Notwithstanding clause (a) above, the Board of Directors of the Company may not designate
any Subsidiary of the Company to be an Unrestricted Subsidiary after the Effective Date if, after
such designation:





     (i) the Company or any Subsidiary provides credit support for, or a guarantee
of, any Indebtedness or other obligation (contingent or otherwise) of such
Subsidiary (including any understanding, agreement or instrument evidencing such
Indebtedness or obligation) or is otherwise subject to recourse or



67









 






obligated
thereunder or therefor, unless such credit support or guarantee is permitted by the
terms of this Indenture;




     (ii) a default with respect to any Indebtedness of such Subsidiary (including
any right which the holders thereof may have to take enforcement action against such
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any Subsidiary of the Company to declare a
default on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity;




     (iii) such Subsidiary owns any Capital Stock in, or owns or holds any Lien on
any property of, any Subsidiary which is not a Subsidiary of the Subsidiary to be so
designated;




     (iv) such Subsidiary has any contract, arrangement, agreement or understanding
with the Company, or any Subsidiary of the Company, whether written or oral, other
than a transaction having terms no less favorable to the Company or such Subsidiary
of the Company than those which might be obtained at the time from persons who are
not Affiliates of the Company; or




     (v) the Company or any Subsidiary of the Company has any obligation to
subscribe for any Capital Stock in such Subsidiary or to maintain or preserve such
Subsidiary’s financial condition or to cause such Subsidiary to achieve specified
levels of operating results, unless such obligation is permitted by the terms of
this Indenture



          SECTION 4.24.   Restriction on Sale and Issuance of Certain Subsidiary Capital Stock. Except as provided in
Section 4.12, the Company and its Subsidiaries will not issue or sell
any Capital Stock of any Subsidiary to any Person other than the Company or a Wholly-Owned
Subsidiary of the Company (except for common Capital Stock with no preferences or special rights or
privileges and with no redemption or prepayment provisions, provided that such
common Capital Stock are sold in compliance with Section 4.12 or to qualify directors to the
extent required by applicable law).




          SECTION 4.25.   Note Documents. Except as otherwise permitted pursuant to the terms of this Indenture and the
other Note
Documents, none of the Company or any of its Subsidiaries will amend, waive or modify any provision
of the Note Documents, except that (i) the Collateral may be released or modified in an Asset Sale
or other disposition or transfer permitted by this Indenture (without giving effect to any
requirements regarding use of proceeds); (ii) any Guarantee may be released as expressly provided
in this Indenture (or, in the case of a Foreign Subsidiary Guarantor, as expressly provided in the
applicable Foreign Subsidiary Guarantee) at the time of such sale or other disposition; (iii) the
Security Documents may be amended or otherwise modified in any manner that does not violate the
terms thereof, including Section 7.01 of the Collateral Agreement and (iv) this Indenture and any
of the other Note Documents may be otherwise amended, waived or modified as set forth under Article
10 hereof.





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          SECTION 4.26.   Subsidiary Guarantees. Prior to or upon guaranteeing any other Indebtedness of the Company
(including, without
limitation, any Indebtedness under the Senior Loan Facility, the Exit Facility or the Additional
Liquidity Facility), the Company shall cause a Subsidiary of the Company that is not a Guarantor
(if such Subsidiary is also a borrower or guarantor of the Senior Loan Facility, the Exit Facility
or the Additional Liquidity Facility or is required to become such a borrower or a guarantor, as
applicable) to execute and deliver to the Trustee a supplemental indenture in the form of Exhibit B
hereto (or, in the case of a Foreign Subsidiary, to execute and deliver a Foreign Subsidiary
Guarantee in a form substantially similar to Exhibit M) pursuant to which such Subsidiary shall
guarantee, as applicable, all of the Obligations of the Company with respect to the Notes together
with an Opinion of Counsel (which counsel may be an employee of the Company) to the effect that the
supplemental indenture (or, in the case of a Foreign Subsidiary, the Foreign Subsidiary Guarantee)
has been duly executed and delivered by such Subsidiary and is in compliance in all material
respects with the terms of this Indenture.




          SECTION 4.27.   Change of Control. (a) Upon the occurrence of a Change of Control, the Company shall make an
offer to
purchase all outstanding Notes pursuant to the offer described in paragraph (b) below (the “Change
of Control Offer”) at a purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the date of purchase.




     (b) Within 45 days following the date upon which the Change of Control occurred (the “Change
of Control Date”), the Company shall send, by first class mail, a notice to each Holder, with a
copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. The notice
to the Holders shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. Such notice shall state:




     (1) that the Change of Control Offer is being made pursuant to this Section 4.27 and
that all Notes tendered and not withdrawn will be accepted for payment;




     (2) the purchase price (including the amount of accrued interest) and the purchase date
(which shall be no earlier than 30 days nor later than 60 days from the date such notice is
mailed, other than as may be required by law) (the “Change of Control Payment Date”);
provided that the Change of Control Payment Date for the Notes shall be a date
subsequent to any payment dates for the purchase or other repayment of Designated Senior
Debt having similar provisions;




     (3) that any Note not tendered will continue to accrue interest;




     (4) that, unless the Company defaults in making payment therefor, any Note accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;




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



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     (6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than five Business Days prior to the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased;




     (7) that Holders whose Notes are purchased only in part will be issued new Notes in a
principal amount equal to the unpurchased portion of the Notes surrendered; provided
that each Note purchased shall be in a minimum principal amount of $1,000; and




     (8) the circumstances and relevant facts regarding such Change of Control.



          On or before the Change of Control Payment Date, the Company shall (i) accept for payment
Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any,
of all Notes so tendered and (iii) deliver to the Trustee Notes so accepted together with an
Officers’ Certificate stating the Notes or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price plus accrued interest (in cash), if any, and the Trustee shall promptly
authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes not so accepted shall be promptly mailed by the
Company to the Holder thereof. For purposes of this Section 4.27, the Trustee shall act as the
Paying Agent.




          Any amounts remaining after the purchase of Notes pursuant to a Change of Control Offer shall
be returned by the Trustee to the Company.




          The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the
extent the provisions of any securities laws or regulations conflict with the provisions under this
Section 4.27, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.27 by virtue thereof.




          SECTION 4.28.   Future Pledges of Collateral to Secure PIK Interest. The Security Documents shall provide that
the Holders of Notes shall, automatically and
without further action, become the beneficiaries of the pledges of property and assets to the
Collateral Trustee pursuant to the Security Documents to the extent of any PIK Notes issued as
payment of PIK Interest on the Notes and any increase in the principal amount of Notes as a result
of a PIK Payment and, in each case, related Guarantees thereof.




          SECTION 4.29.   Limitation on Layering. The Company will not incur, create, issue, assume, guarantee or otherwise
become liable for
any Indebtedness that is subordinate or junior in right of payment to any Designated Senior Debt of
the Company and senior in right of payment to the Notes. No Guarantor will incur, create, issue,
assume, guarantee or otherwise



70









 






become liable for any Indebtedness that is subordinate or junior in
right of payment to any Guarantor Senior Debt of such Guarantor and senior in right of payment to
such Guarantor’s Guarantee. For purposes of the foregoing, no Indebtedness will be deemed to be
subordinated or junior in right of payment to any other Indebtedness solely by virtue of being
unsecured or by virtue of the fact that the holders of secured Indebtedness have entered into
intercreditor or similar arrangements giving one or more of such holders priority over the other
holders in the collateral held by them.




ARTICLE 5




SUCCESSOR CORPORATION




          SECTION 5.1.   Merger, Consolidation or Sale of Assets. (a)  The Company will not consolidate with,
merge with or into, or sell, assign, lease,
convey, transfer or otherwise dispose of (a “transfer”) all or substantially all of its assets (as
an entirety or substantially as an entirety in one transaction or a series of related
transactions), to any Person unless: (i) the Company shall be the continuing Person, or the Person
(if other than the Company) formed by such consolidation or into which the Company is merged or to
which the properties and assets of the Company are transferred shall be a corporation organized and
existing under the laws of the United States or any State thereof or the District of Columbia and
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the Notes, this Indenture
and the Security Documents, and the obligations under this Indenture shall remain in full force and
effect and shall cause such amendments, supplements or other instruments to be executed, filed, and
recorded in such jurisdictions as may be required by applicable law to
preserve and protect the Lien on the Collateral owned by or transferred to the successor
Company, together with such financing statements or comparable documents as may be required to
perfect any security interests in such Collateral which may be perfected by the filing of a
financing statement or a similar document under the UCC or other similar statute or regulation of
the relevant states or jurisdictions; (ii) immediately before and immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii)
immediately after giving effect to such transaction on a pro forma basis the Company or such Person
could incur at least $1.00 additional Indebtedness pursuant to the first paragraph of Section 4.10
hereof (unless such merger, sale, assignment, lease, conveyance, transfer or disposition could have
been made under the Senior Loan Agreement as in effect on the date hereof); (iv) each Guarantor
(unless it is the other party to the transactions above, in which case clause (i) shall apply)
shall have by supplemental indenture (or, in the case of a Foreign Subsidiary Guarantor, by such
other document satisfactory to the Trustee) confirmed that its Guarantee shall apply to such
Person’s obligations in respect of this Indenture and the Notes and its obligations under the
Security Documents shall remain in full force and effect and shall cause such amendments,
supplements or other instruments to be executed, filed, and recorded in such jurisdictions as may
be required by applicable law to preserve and protect the Lien on the Collateral owned by such
Guarantor, together with such financing statements or comparable documents as may be required to
perfect any security interests in such Collateral which may be perfected by the filing of a
financing statement or a similar document under the UCC or other similar statute or regulation of
the relevant states or jurisdictions; and (v) immediately thereafter, the Company or the other
surviving entity, as the case may be, shall have a Consolidated Net Worth equal to or greater



71









 






than
the Consolidated Net Worth of the Company immediately prior to such transaction (unless such
merger, sale, assignment, lease, conveyance, transfer or disposition could have been made under the
Senior Loan Agreement as in effect on the date hereof).




          (b) In connection with any consolidation, merger or transfer of assets contemplated by this
Section 5.1, the Company shall deliver or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.1 and that all conditions precedent herein provided for
relating to such transaction or transactions have been complied with.




          (c) In addition, the Company will not permit any Guarantor to consolidate with or merge with
or into any Person (other than another Guarantor) and will not permit the conveyance, transfer or
lease of substantially all of the assets of any Guarantor unless (i) the resulting, surviving or
transferee Person will be a corporation, partnership, trust or limited liability company organized
and existing under the laws of the United States of America, any State thereof or the District of
Columbia (or, in the case of Foreign Subsidiary Guarantor, under the laws of the jurisdiction of
such Foreign Subsidiary Guarantor) and such Person (if not such Guarantor) will expressly assume,
by supplemental indenture (or, in the case of a foreign entity, by Foreign Subsidiary Guarantee),
executed and delivered to the Trustee, all the obligations of such Guarantor under its Guarantee;
(ii) immediately before and immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and (iii) the Company shall have delivered
or caused to be delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture (if any) comply with this Section 5.1.




     This Section 5.1 shall not apply to the sale of the stock or assets of the Company or any
Subsidiary of the Company in accordance with Section 4.12 hereof.



          SECTION 5.2.   Successor Person Substituted. Upon any consolidation or merger, or any transfer of all or
substantially all of the assets
of the Company or any Subsidiary in accordance with Section 5.1 above, the successor corporation
formed by such consolidation or into which the Company or any Subsidiary is merged or to which such
transfer is made shall succeed to, and be substituted for, and may exercise every right and power
of, the Company or such Subsidiary under this Indenture with the same effect as if such successor
corporation had been named as the Company or such Subsidiary herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this Indenture and the Notes,
except, in the case of a transfer, for the obligation to pay the principal of, premium, if any, and
interest on, the Notes.




ARTICLE 6




DEFAULTS AND REMEDIES




          SECTION 6.1.   Events of Default. An “Event of Default” occurs if:





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	 	(1)	 	there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable on the
Maturity Date, upon optional redemption, upon required repurchase, upon
declaration or otherwise;
	 
	 	(2)	 	there is a default for 30 consecutive days in the payment of
any interest (whether in the form of PIK Notes or an increase in the principal
amount of Notes as a result of a PIK Payment or otherwise) on the Notes after
such interest becomes due and payable;
	 
	 	(3)	 	the Company or any Guarantor fails to comply with any of the
terms or provisions of Section 5.1 hereof for a period of 30 consecutive days;
	 
	 	(4)	 	the Company or any Guarantor defaults in the observance or
performance of any other provision, covenant or agreement contained in the
Notes, this Indenture or the Security Documents for 60 consecutive days after
written notice by registered or certified mail to the Company from the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Notes
then outstanding;
	 
	 	(5)	 	there is a failure to pay when due (and beyond the grace
period, if any, therefor) principal, interest or premium in an aggregate amount
of (A) $20,000,000 or more with respect to any Indebtedness (other than Capital
Lease Obligations or Purchase Money Indebtedness) of the Company or any
Guarantor or (B) $125,000,000 or more with respect to any Indebtedness of
any Subsidiary of the Company that is not a Guarantor or Capital Leases or
Purchase Money Indebtedness of any Group Member, or the acceleration prior
to its express maturity of any such Indebtedness aggregating (A) $20,000,000
or more with respect to any Indebtedness (other than Capital Lease
Obligations or Purchase Money Indebtedness) of the Company or any Guarantor
or (B) $125,000,000 or more with respect to any Indebtedness of any
Subsidiary of the Company that is not a Guarantor or Capital Leases or
Purchase Money Indebtedness of any Group Member;
	 
	 	(6)	 	a court of competent jurisdiction renders a final judgment or
judgments which can no longer be appealed for the payment of money, in any
individual case or in the aggregate at any time, in excess of $25,000,000
(which are not paid or covered by third party insurance by financially sound
insurers) against the Company or any Subsidiary thereof and such judgment
remains undischarged for a period of 60 consecutive days during which a stay of
enforcement of such judgment shall not be in effect;
	 
	 	(7)	 	The Company or (A) any Subsidiaries of the Company that are not
Guarantors, together with Subsidiaries which have been liquidated pursuant to
clause (viii) of the definition of “Asset Sale,” having assets with an
aggregate book value of at least 10% of the book value or (B) any




73









 






	 	 	 	Guarantors
having assets with an aggregate book value of at least 1%, in each case, of the
consolidated assets of the Group Members, taken as a whole, pursuant to or
within the meaning of any Bankruptcy Law:






     (A) commences a voluntary case or proceeding,




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




     (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property,




     (D) makes a general assignment for the benefit of its creditors or
shall admit in writing its inability to pay its debt, or




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




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






     (A) is for relief against the Company or any Subsidiary in an
involuntary case or proceeding,




     (B) appoints a Custodian of the Company or any Subsidiary or for all or
substantially all of the property of the Company or any Subsidiary, or




     (C) orders the liquidation of the Company or any Subsidiary,




     (D) and, in each case, the order or decree remains unstayed and in
effect for 60 consecutive days;




	 	(9)	 	at any time after the execution and delivery thereof, (i) any
Guarantee for any reason, other than the satisfaction in full of all
Obligations guaranteed thereunder or the release of such Guarantee pursuant to
Section 11.4 (or, in the case of a Foreign Subsidiary Guarantor, the applicable
Foreign Subsidiary Guarantee for any reason, other than the satisfaction in
full of all Obligations guaranteed thereunder or the release of such Guarantee
pursuant to such Foreign Subsidiary Guarantee), shall cease to be in full force
and effect (other than in accordance with its terms) or shall be declared to be
null and void, or (ii) a material Security Document shall cease to be in full
force and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof pursuant to a transaction permitted
hereunder (without giving effect to any requirements regarding use of
proceeds), the satisfaction in full of the Obligations or any other termination
of such Security Document in accordance with the terms hereof or thereof) or
except to the extent otherwise waived pursuant to this Indenture and the
Security Documents,




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	 	 	 	shall be declared null and void, or the Trustee or the
Collateral Agent shall not have or shall cease to have a valid and perfected
Lien on any Collateral granted on the Effective Date or thereafter granted
pursuant to the terms of this Indenture covered thereby having a fair market
value, individually or in the aggregate, exceeding $20,000,000 that is (x)
property in which a security interest can be granted and perfected under the
UCC, (y) Intellectual Property registered with the United States Patent and
Trademark Office or the United States Copyright Office, or (z) real estate
subject to a Mortgage, provided that if a failure of the sort described
in this clause (9) is susceptible of cure, no Event of Default shall arise
under this clause (9) with respect thereto until 30 consecutive days after
written notice of such failure shall have been given to the Company by the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes;
	 
	 	(10)	 	holders of Exit Facility Indebtedness, Senior Loan Facility
Indebtedness or Additional Liquidity Facility Indebtedness holding a Lien on
the stock or assets of the Company or any of its Subsidiaries take any judicial
action to enforce such Lien;
	 
	 	(11)	 	except as otherwise provided in the Security Documents, any
amendments thereto and the provisions of this Indenture, any of the Security
Documents ceases to be in full force and effect or ceases to be effective,
in all material respects, to create the Lien purported to be created in the
Collateral having a fair market value, individually or in the aggregate,
exceeding $20,000,000 in (x) property in which a security interest can be
granted and perfected under the UCC, (y) Intellectual Property registered
with the United States Patent and Trademark Office or the United States
Copyright Office, or (z) real estate subject to a Mortgage, in favor of the
Holders of any Notes for 60 consecutive days after the Trustee receives
written notice.





     Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall not be charged with
knowledge of any Default or Event of Default unless written notice thereof shall have been given to
a Responsible Officer at the Corporate Trust Office by the Company or any other Person.



          SECTION 6.2.   Acceleration. If an Event of Default (other than an Event of Default arising under
Section 6.1(7) or (8))
occurs and is continuing, the Trustee by written notice to the Company by registered or certified
mail or the Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding by written notice to the Company by registered or certified mail and the Trustee, may
declare to be immediately due and payable the entire principal amount of all the Notes then
outstanding plus premium, if any, and accrued but unpaid interest to the date of acceleration;
provided, however, that after such acceleration but before a judgment or decree
based on such acceleration is obtained by the Trustee, the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes may rescind and annul such acceleration if all
existing Events of Default, other than nonpayment of accelerated principal, premium, if any, or
interest, have been cured or waived as provided in this Indenture




75









 







and if the rescission would not
conflict with any judgment or decree. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.




     In case an Event of Default specified in Section 6.1(7) or (8) occurs, the principal, premium,
if any, and interest amount with respect to all of the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or the
Holders of the Notes.



          SECTION 6.3.   Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any
available
remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if
any, and interest on the Notes or to enforce the performance of any provision of the Notes or this
Indenture and may take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.




     The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the extent
permitted by law.



          SECTION 6.4.   Waiver of Defaults and Events of Default. Subject to Sections 6.2, 6.7 and 8.2 hereof, the
Holders of a majority in principal amount
of the Notes then outstanding have the right to waive any existing or future Default or Event of
Default or compliance with any provision of this Indenture or the Notes. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereto except as specifically
set forth therein.




          SECTION 6.5.   Control by Majority. The Holders of a majority in principal amount of the Notes then outstanding
may direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law, this Indenture or the Security Documents or
that the Trustee determines may be unduly prejudicial to the rights of another Noteholder not
taking part in such direction, and the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the proceedings so directed
may involve it in personal liability unless the Trustee has asked for and received indemnification
reasonably satisfactory to it against any loss, liability or expense caused by its following such
direction; provided that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.





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          SECTION 6.6.   Limitation on Suits. Subject to Section 6.7 below, a Noteholder may not institute any
proceeding or pursue any
remedy with respect to this Indenture or the Notes unless:





     (1) the Holder has previously given to the Trustee written notice of a continuing Event
of Default;




     (2) the Holders of at least a majority in aggregate principal amount of the Notes then
outstanding make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders have offered, and if requested, provide to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;




     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and




     (5) no direction inconsistent with such written request has been given to the Trustee
during such 60 day period by the Holders of a majority in aggregate principal amount of the
Notes then outstanding.



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



          SECTION 6.7.   Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to
receive payment of principal of, or premium, if any, and interest on the Note on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of the Holder.




          SECTION 6.8.   Collection Suit by Trustee. If an Event of Default in payment of principal, premium or interest
specified in Section
6.1(1) or (2) hereof occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or the Guarantors (or any other obligor on the
Notes) for the whole amount of unpaid principal and accrued interest remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate then borne by the Notes
(after giving effect to Section 4.1), and such further amounts as shall be sufficient to cover the
costs and expenses of collection, including the compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, including all sums due and owing to the Trustee pursuant to
the Indenture including Section 7.7.




          SECTION 6.9.   Trustee May File Proofs of Claim. The Trustee 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 compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and the Noteholders
allowed in any judicial proceedings relative to the Company or the Guarantors (or any other obligor
upon the Notes), their respective creditors or property and shall be entitled and empowered to
collect and receive




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any monies or other property payable or deliverable on any such claims and to
distribute the same after deduction of its reasonable charges and expenses to the extent that any
such charges and expenses are not paid out of the estate in any such proceedings and any custodian
in any such judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, to pay to the Trustee any amount due to it for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under the Indenture, including Section 7.7. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Noteholder in any such proceedings.




          SECTION 6.10.   Priorities. If the Trustee collects any money pursuant to this Article 6, it shall pay out
the money in
the following order:




     FIRST: to the Trustee, its agents and counsel for amounts due under this Indenture,
including, Section 7.7 hereof;



     SECOND: to Noteholders for amounts due and unpaid on the Notes for principal, premium, if
any, and interest as to each, ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on the Notes; and



     THIRD: to the Company or, to the extent the Trustee receives any amount directly from any
Guarantor, to such Guarantor.



     The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to
this Section 6.10. The Trustee shall give the Company prior written notice of any such record date
and payment date; provided, however, that the failure to give any such notice shall
not affect the establishment of such record date or payment date or any payment to Noteholders
pursuant to this Section 6.10.



          SECTION 6.11.   Undertaking for Costs. In any suit for the enforcement of any right or remedy under this
Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees 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 6.11 does not apply to a
suit instituted by the Trustee, a suit instituted by a Holder pursuant to Section 6.7 hereof or a
suit instituted by Holders of more than 10% in principal amount of the Notes then outstanding.




          SECTION 6.12.   Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and




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respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.




          SECTION 6.13.   Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise
any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy given by this
Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.




ARTICLE 7




TRUSTEE




          SECTION 7.1.   Duties of Trustee. (a)  If an Event of Default has occurred and is continuing, the
Trustee shall exercise such
of the rights and powers vested in it by this Indenture and any supplemental indenture (including
providing for Guarantees of the Notes and any supplemental indenture (or, in the case of a Foreign
Subsidiary, a Foreign Subsidiary Guarantee) required pursuant to Sections 4.22 or 4.26 hereof) and
use the same degree of care and skill in their exercise as a prudent person would exercise or use
under the same circumstances in the conduct of such person’s own affairs.




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





     (1) The Trustee need perform only those duties that are specifically set forth in this
Indenture (including any supplemental indenture) and the Security Documents and those
actions that are reasonably necessary for the performance of the specified duties and no
others and no implied covenants or obligations shall be read into this Indenture or the
Security Documents against the Trustee.




     (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture but, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture and the Security Documents (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).



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





     (1) This paragraph does not limit the effect of paragraph (b) of this Section 7.1.



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     (2) In the absence of bad faith on its part, the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.




     (3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Sections 6.2 or
6.5 hereof.



          (d) 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 rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to it.




          (e) Whether or not therein expressly so provided, paragraphs (a), (b), (c), (d), (f) and (g)
of this Section 7.1 shall govern every provision of this Indenture that in any way relates to the
Trustee or any Agent.




          (f) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability, expense or fee.




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




          SECTION 7.2.   Rights of Trustee. Subject to Section 7.1 hereof:





     (1) The Trustee may conclusively rely on and shall be protected in acting or refraining
from acting upon any document (whether in original or facsimile form) reasonably believed by
it to be genuine and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document;




     (2) The Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed by it with due care;




     (3) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or powers;
provided that the Trustee’s conduct does not constitute negligence or bad faith;




     (4) The Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel;




     (5) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, or both;



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     (6) The Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;




     (7) The Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture;




     (8) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its rights 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; and




     (9) The Trustee may request that the Company deliver an Officers’ 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 Officers’ Certificate may be signed by
any person authorized to sign an Officers’ Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.



          SECTION 7.3.   Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the
owner or pledgee of
Notes and may make loans to, accept deposits from, perform services for or otherwise deal with the
Company or any Guarantor, or any Affiliates thereof, with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. The Trustee, however, shall be subject to
Sections 7.10 and 7.11 hereof.




          SECTION 7.4.   Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of
this Indenture, the
Security Documents, the Notes or any Guarantee, it shall not be accountable for the Company’s use
of the proceeds from the issuance of Notes or any money paid to the Company pursuant to the terms
of this Indenture or the Security Documents, and it shall not be responsible for any statement in
the Notes or any document used in connection with the sale of the Notes other than its certificate
of authentication.




          SECTION 7.5.   Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is known
to the
Trustee, the Trustee shall mail to each Noteholder notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or Event of Default in payment of
principal or premium, if any, or interest on the Notes, or that resulted from the failure of the
Company to comply with Section 5.1, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines it to be in the best interests of
the holders of the Notes to do so.




          SECTION 7.6.   Reports by Trustee to Holders. If required by TIA Section 313(a), within 60 days after
May 15 of any year, commencing the
May 15 following the date of this Indenture, the Trustee shall mail to each Noteholder a brief
report dated as of such May 15 that complies with TIA Section 313(a); provided that no such
report need be transmitted if no




81









 







such events listed in TIA Section 313(a) have occurred within such
period. The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA Section 313(c) and TIA
Section 313(d).




          SECTION 7.7.   Compensation and Indemnity. The Company and the Guarantors (on a joint and several basis) shall
pay to the Trustee from
time to time such compensation as shall be agreed in writing between the Company and the Trustee
(or in the absence of such an agreement, reasonable compensation) for its services hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Company and the Guarantors (on a joint and several basis) shall
reimburse the Trustee upon request for all reasonable disbursements, expenses and advances incurred
or made by it in connection with its duties under this Indenture, including the compensation,
disbursements and expenses of the Trustee’s agents and counsel.




     The Company and the Guarantors (on a joint and several basis) shall indemnify each of the
Trustee and any predecessor Trustee for, and hold them harmless against, any and all loss, damage,
claim, liability, expense (including but not limited to attorneys’ fees and expenses) or taxes
(other than taxes based on the income of the Trustee) incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the costs and expenses of
defending itself against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder, under the Note Documents and the Collateral Agency and
(including, settlement costs). The Trustee shall notify the Company and the Guarantors in writing
promptly of any claim asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company and the Guarantors shall not relieve the Company or
the Guarantors of their obligations hereunder.



     Notwithstanding the foregoing, the Company and the Guarantors need not reimburse the Trustee
for any expense or indemnify it against any loss or liability incurred by the Trustee through its
own negligence or willful misconduct. To secure the payment obligations of the Company and the
Guarantors in this Indenture (or, in the case of a Foreign Subsidiary Guarantor, the Applicable
Foreign Subsidiary Guarantee), including, Sections 7.7 and 9.5, the Trustee and any predecessor
Trustee shall have a lien prior to the Notes on all money or property held or collected by the
Trustee in its capacity as such, except such money or property held in trust to pay principal of,
premium, if any, and interest on particular Notes. The obligations of the Company and the
Guarantors under this Section 7.7 to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of the Company and each of the
Guarantors and shall survive the satisfaction and discharge of this Indenture, including the
termination or rejection hereof in any bankruptcy proceeding to the extent permitted by law.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(7) or (8) hereof occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.



          SECTION 7.8.   Replacement of Trustee. The Trustee may resign by so notifying the Company and the Guarantors in
writing, such
resignation to become effective upon the




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appointment of a successor Trustee. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by notifying the
removed Trustee in writing and may appoint a successor Trustee with the Company’s written consent
which consent shall not be unreasonably withheld. The Company may remove the Trustee at its
election if:





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




     (2) the Trustee is adjudged a bankrupt or an insolvent;




     (3) a receiver or other public officer takes charge of the Trustee or its property; or




     (4) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee.



     If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 25% in aggregate
principal amount of the outstanding Notes may petition any court of competent jurisdiction at the
expense of the Company and Guarantors, in the case of the Trustee, for the appointment of a
successor Trustee.



     If the Trustee fails to comply with Section 7.10 hereof, any Noteholder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall,
subject to its rights under Section 7.7 hereof, transfer all property held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each Noteholder.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations
under Section 7.7 hereof shall continue for the benefit of the retiring Trustee.



          SECTION 7.9.   Successor Trustee by Consolidation, Merger or Conversion. If the Trustee consolidates with, merges
or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation or national banking
association, subject to Section 7.10 hereof, the successor corporation or national banking
association without any further act shall be the successor Trustee.




          SECTION 7.10.   Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section
310(a)(1) and (2) in every respect. The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b), including the provision in Section 310(b)(1);
provided that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities, or



83









 






conflicts of interest or participation in
other securities, of the Company or the Guarantors are outstanding if the requirements for
exclusion set forth in TIA Section 310(b)(1) are met.




          SECTION 7.11.   Preferential Collection of Claims Against Company. The Trustee shall comply with TIA
Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.




          SECTION 7.12.   Paying Agents. The Company shall cause each Paying Agent other than the Trustee to execute and
deliver to
it and the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 7.12:





     (a) that it will hold all sums held by it as agent for the payment of principal of, or
premium, if any, or interest on, the Notes (whether such sums have been paid to it by the
Company or by any obligor on the Notes) in trust for the benefit of Holders of the Notes or
the Trustee;




     (b) that it will at any time during the continuance of any Event of Default, upon
written request from the Trustee, deliver to the Trustee all sums so held in trust by it
together with a full accounting thereof; and




     (c) that it will give the Trustee written notice within three (3) Business Days of any
failure of the Company (or by any obligor on the Notes) in the payment of any installment of
the principal of, premium, if any, or interest on, the Notes when the same shall be due and
payable.



          SECTION 7.13.   Co-Trustee and Separate Trustees. At any time or times, for the purpose of meeting the legal
requirements of any applicable
jurisdiction, the Company and the Trustee shall have power to appoint, and, upon the written
request of the Trustee or of the Holders of at least 33% in aggregate principal amount of the Notes
then outstanding, the Company shall for such purpose join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the Trustee, or to act as
separate trustee, in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in the capacity aforesaid, and for the benefit
of the Holders, any property, title, right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Company does not join in such appointment within 15
days after the receipt by it of a written request so to do, or if an Event of Default shall
have occurred and be continuing, the Trustee alone shall have power to make such appointment.




     Should any written instrument or instruments from the Company be required by any co-trustee or
separate trustee to more fully confirm to such co-trustee or separate trustee such property, title,
right or power, any and all such instruments shall, on request, be executed, acknowledged and
delivered by the Company.



     Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:



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          (a) the Notes shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;




          (b) the rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and performed singly by such
co-trustee or separate trustee;




          (c) the Trustee at any time, by an instrument in writing executed by it, with the concurrence
of the Company, may accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, if an Event of Default shall have occurred and be continuing,
the Trustee shall have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in
this Section;




          (d) no co-trustee or separate trustee hereunder shall be personally liable by reason of any
act or omission of the Trustee, or any other such trustee hereunder, and the Trustee shall not be
personally liable by reason of any act or omission of any such co-trustee or separate trustee;




          (e) any act of Holders delivered to the Trustee shall be deemed to have been delivered to each
such co-trustee and separate trustee;




          (f) any separate trustee or co-trustee may at any time appoint the Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Indenture on its behalf and in its name; and




          (g) if any separate trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a new successor trustee.




ARTICLE 8




AMENDMENTS, SUPPLEMENTS AND WAIVERS




          SECTION 8.1.   Without Consent of Holders. The Company and/or one or more Guarantors and the Trustee may, at any
time and from time to
time, modify, waive, amend or




85









 







supplement this Indenture, the Notes, the Guarantees or the other
Note Documents, without notice to or consent of any Noteholder:





     (1) to comply with Section 5.1 hereof;




     (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




     (3) to comply with any requirements of the SEC under the TIA;




     (4) to cure any ambiguity, defect or inconsistency, to correct or supplement any
provision herein which may be defective or to make any other change that does not adversely
affect the rights of any Noteholder;




     (5) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes;




     (6) to enter into additional or supplemental Security Documents consistent with the
terms hereof;




     (7) to adjust the aggregate principal amount of Notes permitted to be issued pursuant
to this Indenture so that the aggregate principal amount of Notes permitted to be issued
pursuant to this Indenture are as provided in the Reorganization Plan;




     (8) to reflect the terms of any agreements with creditors of the Company and its
Subsidiaries entered into pursuant to the Reorganization Plan or otherwise approved by the
Bankruptcy Court, or to otherwise comply with the terms of the Reorganization Plan;




     (9) to add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company;




     (10) to make any change that would provide any additional rights or benefits to the
Holders of the Notes (including providing for Guarantees of the Notes and any supplemental
indenture (or, in the case of Foreign Subsidiaries, any Foreign Subsidiary Guarantee)
required pursuant to Sections 4.22 or 4.26 hereof) or that does not adversely
affect the legal rights under this Indenture of any such Holder (including such changes
as shall be necessary to permit or facilitate the Legal Defeasance, Covenant Defeasance
and/or discharge of the Indenture pursuant to Section 9.1); or




     (11) to add any additional Events of Default.



     The Trustee is hereby authorized to join with the Company and the Guarantors, if any, in the
execution of any modification, waiver, amendment or supplement to this Indenture, the Notes, the
Guarantees or the other Note Documents authorized or permitted by the terms of this Indenture and
to make any further appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such modification, waiver, amendment or supplement
to this Indenture, the Notes, the Guarantees or the other Note



86









 







Documents which adversely affects
its own rights, duties, liabilities or immunities under this Indenture.



          SECTION 8.2.   With Consent of Holders. The Company and/or one or more Guarantors and the Trustee may modify,
waive, amend or
supplement this Indenture, the Notes, the Guarantees or the other Note Documents (subject to any
amendment provisions contained therein) with the written consent of the Holders of not less than a
majority in aggregate principal amount of outstanding Notes. The Holders of not less than a
majority in aggregate principal amount of outstanding Notes may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes. Subject to Section 8.4,
without the consent of each Noteholder affected, however, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.4, may not:





     (1) reduce the principal amount of Notes whose Holders must consent to an amendment,
modification, supplement or waiver (for compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) to this Indenture or the Notes;




     (2) reduce the rate of or change the time for, or manner of, payment of interest on any
Note;




     (3) reduce the principal of or premium on or change the stated maturity of any Note;




     (4) waive a default in the payment of the principal of, premium, if any, or interest
on, or redemption payment with respect to any Note;




     (5) change the amount or time of any payment required by the Note or waive a redemption
payment with respect to any Note (other than a payment required pursuant to Sections 4.12
and 4.27);




     (6) make any Note payable in money other than that stated in the Note or change the
place of payment from New York, New York;




     (7) subordinate in right of payment, or otherwise subordinate, the Notes or the
Guarantees to another Indebtedness or obligation of the Company or the Guarantors other than
Designated Senior Debt;




     (8) release all or substantially all of the Collateral from the Lien of this Indenture
and the Security Documents (other than pursuant to a Disposition in compliance with Section
4.12 hereof, or upon payment in full of all Obligations of the Company hereunder and under
the Notes);




     (9) take any other action otherwise prohibited by this Indenture to be taken without
the consent of each Holder affected thereby;



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     (10) release any Guarantor from any of its obligations under the Guarantee, except
pursuant to a transaction permitted under this Indenture (or, in the case of a Foreign
Subsidiary Guarantor, the applicable Foreign Subsidiary Guarantee); or




     (11) modify this Section 8.2 or Sections 6.4 or 6.7.



     After a modification, amendment, supplement or waiver under this Section 8.2 becomes
effective, the Company shall mail to the Holders a notice briefly describing the modification,
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such modification,
amendment, supplement or waiver.



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



          SECTION 8.3.   TIA Compliance. Every amendment, waiver or supplement of this Indenture or the Notes shall comply
with the
TIA as then in effect.




          SECTION 8.4.   Revocation and Effect of Consents. Until a modification, amendment, supplement, waiver or other
action becomes effective, a
consent to it by a Holder of a Note is a continuing consent conclusive and binding upon such Holder
and every subsequent Holder of the same Note or portion thereof, and of any Note issued upon the
transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is
not made on any such Note. Any such Holder or subsequent Holder, however, may revoke the consent as
to his Note or portion of a Note, if the Trustee receives the notice of revocation before the date
the modification, amendment, supplement, waiver or other action becomes effective. Notwithstanding
the foregoing, nothing in this paragraph shall impair the right of any Holder under TIA Section
316(b).




     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 modification, amendment, supplement, or waiver.
If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons
who were Holders at such record date (or their duly designated proxies), and only such
Persons, shall be entitled to consent to such modification, 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 unless the consent of the requisite number of Holders has been obtained.



     After a modification, amendment, supplement, waiver or other action becomes effective, it
shall bind every Holder and every subsequent Holder.



          SECTION 8.5.   Notation on or Exchange of Notes. If a modification, amendment, supplement or waiver changes the
terms of a Note, the Trustee
may request the Holder of the Note to deliver it to the Trustee. In such case, the Trustee shall
place an appropriate notation on the Note about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new security that reflects the changed terms.
Failure to make the




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appropriate notation or issue a new Note shall not affect the validity and
effect of such modification, amendment, supplement or waiver.




          SECTION 8.6.   Trustee to Sign Amendments, etc. The Trustee shall sign any modification, amendment, supplement or
waiver authorized pursuant
to this Article 8 if the modification, amendment, supplement or waiver does not affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign
it. In signing or refusing to sign such modification, amendment, supplement or waiver, the Trustee
shall be provided with and, subject to Section 7.1 hereof, shall be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that such modification, amendment,
supplement or waiver is authorized or permitted by this Indenture and such modification, amendment,
supplement or waiver constitutes the legal, valid and binding obligation of the Company and the
applicable Guarantors enforceable against each of them in accordance with its terms (subject to
customary exceptions). The Company or any Guarantor may not sign a modification, amendment or
supplement until the Board of Directors of the Company or such Guarantor, as appropriate, approves
it in writing.




ARTICLE 9




DISCHARGE OF INDENTURE; DEFEASANCE




          SECTION 9.1.   Discharge of Indenture. The Company and the Guarantors, if any, may terminate their obligations
under the Notes,
the Guarantees, if any, and this Indenture, except the obligations referred to in the last
paragraph of this Section 9.1, if either (i) there shall have been cancelled by the Trustee or
delivered to the Trustee for cancellation all Notes theretofore authenticated and delivered (other
than any Notes that are asserted to have been destroyed, lost or stolen and that shall have been
replaced as provided in Section 2.7 hereof) or (ii) all Notes not theretofore surrendered or
delivered to the Trustee for cancellation shall have become due and payable, or are by their terms
to become due and payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee, and the Company shall irrevocably deposit or
cause to be deposited with the Trustee, as trust funds solely for the benefit of the Holders for
that purpose, an amount sufficient to pay at maturity or upon redemption all of the Notes (other
than any Notes which shall have been destroyed, lost or stolen and in lieu of or in substitution
for which other Notes shall have been authenticated and delivered) not theretofore surrendered or
delivered to the Trustee for cancellation, including principal, premium, if any, and interest due
or to become due to such date of maturity or redemption date, as the case may be.




     In such event, the Trustee upon request from the Company, accompanied by an Officers’
Certificate and Opinion of Counsel, each stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been complied with, shall
acknowledge in writing the discharge of the Company’s and the Guarantors’ obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations specified below.



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     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company in Sections 2.7, 7.7, 9.5, 9.6 and 9.8 hereof shall survive such satisfaction and
discharge.



          SECTION 9.2.   Legal Defeasance. The Company may at its option, by Board Resolution, be discharged from its
obligations with
respect to the Notes and the Guarantors, if any, discharged from their obligations under the
Guarantees, if any, on the date the conditions set forth in Section 9.4 below are satisfied
(hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and to
have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes
are concerned (and the Trustee, at the expense of the Company, shall, subject to Section 9.6
hereof, execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Notes to receive solely from the trust funds described in Section 9.4 hereof and as
more fully set forth in such Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (B) the Company’s obligations with respect to
such Notes under Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 and 3.8 hereof, (C) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.7 hereof) and (D) this Article 9. Subject to compliance with
this Article 9, the Company may exercise its option under this Section 9.2 with respect to the
Notes notwithstanding the prior exercise of its option under Section 9.3 below with respect to the
Notes.




          SECTION 9.3.   Covenant Defeasance. At the option of the Company, pursuant to a Board Resolution, the Company and
the
Guarantors, if any, shall be released from their respective obligations under Sections 4.2 through
4.4, inclusive, Sections 4.6 through 4.18, inclusive, Section 4.27, clause (c) of Section 5.1 and
Section 6.1(5) hereof with respect to the outstanding Notes on and after the date the conditions
set forth in Section 9.4 hereof are satisfied (hereinafter, “Covenant Defeasance”) and the Notes
shall thereafter be deemed to not be outstanding for purposes of any direction, waiver,
consent, declaration or act of the Holders (and the consequences thereof) in connection with such
covenants or with respect to any Event of Default set forth in Section 6.1(5) hereof but shall
continue to be outstanding for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that the Company and the Guarantors, if any, may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such specified
Section or portion thereof, whether directly or indirectly by reason of any reference elsewhere
herein to any such specified Section or portion thereof or by reason of any reference in any such
specified Section or portion thereof to any other provision herein or in any other document, but
the remainder of this Indenture and the Notes shall be unaffected thereby.




          SECTION 9.4.   Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to
application of Sections 9.2 or 9.3 hereof to the
outstanding Notes:





     (1) the Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.10 hereof



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who shall
agree to comply with the provisions of this Article 9 applicable to it) as funds in trust
for the purpose of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, 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, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of,
premium, if any, and accrued interest on the outstanding Notes at the maturity date of such
principal, premium, if any, or interest, or on dates for payment and redemption of such
principal, premium, if any, and interest selected in accordance with the terms of this
Indenture and of the Notes;




     (2) no Event of Default or Default with respect to the Notes shall have occurred and be
continuing on the date of such deposit, or shall have occurred and be continuing at any time
during the period ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest reference period under any
Bankruptcy Law applicable to the Company in respect of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such period);




     (3) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute default under any other material agreement or instrument to
which the Company is a party or by which it is bound;




     (4) the Company shall have delivered to the Trustee an Opinion of Counsel stating that,
as a result of such Legal Defeasance or Covenant Defeasance, neither the
trust nor the Trustee will be required to register as an investment company under the
Investment Company Act of 1940, as amended;




     (5) in the case of an election under Section 9.2 above, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling to the effect
that or (ii) there has been a change in any applicable Federal income tax law with the
effect that, and such opinion shall confirm that, the Holders of the outstanding Notes or
persons in their positions will not recognize income, gain or loss for Federal income tax
purposes as a result of such Legal Defeasance and will be subject to Federal income tax on
the same amounts, in the same manner, including as a result of prepayment, and at the same
times as would have been the case if such Legal Defeasance had not occurred;




     (6) in the case of an election under Section 9.3 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the
outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as
a result of such Covenant Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;



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     (7) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that (a) all conditions precedent provided for relating to
either the Legal Defeasance under Section 9.2 above or the Covenant Defeasance under Section
9.3 hereof (as the case may be) have been complied with and (b) if any other Indebtedness of
the Company shall then be outstanding, such legal defeasance or covenant defeasance will not
violate the provisions of the agreements or instruments evidencing such Indebtedness;




     (8) the Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit under clause (1) was not made by the Company with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company or others; and




     (9) Legal Defeasance and Covenant Defeasance may be effected only with respect to all,
and not be less than all, of the outstanding Notes.



          SECTION 9.5.   Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions. All money and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or another trustee satisfying the requirements of Section 7.10 hereof) pursuant to
Sections 9.1 or 9.4 hereof in respect of the outstanding Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and
accrued interest, but such money need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no duty to invest such money or U.S. Government
Obligations.




     The Company and the Guarantors shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to
Sections 9.1 or 9.4 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Notes.



     Subject to Sections 7.1 and 7.2 hereof, anything in this Article 9 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in Section 9.4 hereof
which, in the opinion of a nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.



          SECTION 9.6.   Reinstatement. If the Trustee (or another trustee satisfying the requirements of Section 7.10
pursuant to
Section 9.4) or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 9.1, 9.2 or 9.3 hereof by reason of any legal proceeding or by reason of
any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company and any Guarantor under this
Indenture, the Notes and the Guarantees, if any, shall be revived and reinstated as though no
deposit had occurred pursuant to




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this Article 9 until such time as the Trustee (or another trustee
satisfying the requirements of Section 7.10 pursuant to Section 9.4) or Paying Agent is permitted
to apply all such money or U.S. Government Obligations in accordance with Section 9.1 hereof;
provided, however, that if the Company or any Guarantors have made any payment of
principal of, premium, if any, or accrued interest on any Notes because of the reinstatement of
their obligations, the Company or such Guarantors, as the case may be, shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee (or another trustee satisfying the requirements of Section 7.10
pursuant to Section 9.4) or Paying Agent.




          SECTION 9.7.   Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture,
all moneys then held
by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company, be
paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section 9.4 hereof, to
the Company (or, if such moneys had been deposited by any Guarantors, to such Guarantors), and
thereupon such Paying Agent shall be released from all further liability with respect to such
moneys.




          SECTION 9.8.   Moneys Held by Trustee. Any moneys deposited with the Trustee or any Paying Agent or then held by
the Company or
any Guarantors in trust for the payment of the principal of, premium, if any, or interest on any
Note that are not applied but remain unclaimed by the Holder of such Note for two years after the
date upon which the principal of, or premium, if any, or interest on such Note
shall have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then held by the Company
or any Guarantors in trust, such moneys shall be released from such trust; and the Holder of such
Note entitled to receive such payment shall thereafter, as an unsecured general creditor, look only
to the Company and the Guarantors, if any, for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Trustee or any such Paying Agent, before being required
to make any such repayment, may, at the expense of the Company and the Guarantors, if any, either
mail to each Noteholder affected, at the address shown in the register of the Notes maintained by
the Registrar pursuant to Section 2.3 hereof, or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily published each
Business Day and of general circulation in the City of New York, New York, a notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such mailing or publication, any unclaimed balance of such moneys then remaining
will be repaid to the Company. After payment to the Company or the Guarantors, if any, or the
release of any money held in trust by the Company or any Guarantors, as the case may be,
Noteholders entitled to the money must look only to the Company and any Guarantors for payment as
general creditors unless applicable abandoned property law designates another person.




          SECTION 9.9.   [Reserved].





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ARTICLE 10




COLLATERAL AND SECURITY




          SECTION 10.1.   Security. The due and punctual payment of the Obligations under the Notes shall be secured by the
Collateral, as provided in the Security Documents which the Company and the applicable parties have
entered into simultaneously with the execution of this Indenture for the benefit of, among others,
the Holders. Each Holder, by its acceptance thereof, consents and agrees to the terms of each of
the Security Documents as the same may be in effect or may be amended from time to time in
accordance with its terms and authorizes and directs the Trustee to enter into the Security
Documents and to perform its obligations and exercise its rights thereunder in accordance
therewith. The Company and the Guarantors shall deliver to the Trustee copies of all documents
executed pursuant to this Indenture and the Security Documents and shall do or cause to be done all
such acts and things as may be required by the provisions of the Security Documents to assure and
confirm the security interest in the Collateral contemplated thereby, by the Security Documents or
any part thereof, as from time to time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Notes and the Guarantees secured hereby,
according to the intent and purposes herein and therein expressed. The Company shall take, or shall
cause its Subsidiaries to take any and all actions reasonably required to create and maintain, as
security for the obligations of the Company hereunder, a valid and enforceable perfected Lien in
and on all the Collateral.




          SECTION 10.2.   Certificates, Opinions and Recording. The Company and the Guarantors will cause this Indenture,
if necessary, the applicable
Security Documents, including any financing statements, all amendments or supplements to each of
the foregoing and any other similar security documents as necessary, to be registered, recorded and
filed and/or re-recorded, re-filed and renewed in such manner and in such place or places, if any,
as may be required by law in order fully to preserve and protect the Lien securing the obligations
under the Notes and the Guarantees of those Guarantors that are parties to the Security Documents
on the terms set forth in the Security Documents and to the extent required by the terms of this
Indenture and the Security Documents.




     The Company, the Guarantors and any other obligor shall furnish to the Trustee:



          (a) At any time when the Trustee becomes the Collateral Trustee under the Security Documents,
promptly after the execution and delivery of any other instrument of further assurance or amendment
(other than a release) to any Security Document, an Opinion of Counsel in the United States (which
may be in-house counsel to the Company and which may include one or more local or foreign counsel
opinions as to matters concerning the laws of affected jurisdictions) (i) stating that such
Security Document and such instruments of further assurance or amendment, if any, are valid,
binding and enforceable obligations of the Company and its Subsidiaries which are signatories to
those agreements, subject to customary qualifications and exceptions (and any other qualifications
and exceptions reasonably acceptable to the Trustee), and (ii) either (A) stating that, subject to
customary assumptions and exclusions (and any other qualifications and exceptions reasonably
acceptable to the Trustee), in the opinion of such counsel, such Security Document or such
amendment or instrument (1) have been recorded, registered and filed to the extent necessary to
make effective the Lien purported to be created by



94









 






such Security Document as a result of such
amendment or (2) are in proper form to be recorded, registered and filed in the filing offices
specified in such opinion and upon such filing will make effective the Lien purported to be created
by such Security Document, and reciting the details of such action or referring to prior Opinions
of Counsel in which such details are given, or (3) that such amendment does not adversely affect
the validity or perfection of the Lien created by such Security Document and, in the case of
clauses (1) and (2) stating that, subject to customary assumptions and exclusions (and any other
qualifications and exceptions reasonably acceptable to the Trustee), as to such Security Documents
and such other instruments such recording, registering and filing will be the only recordings,
registrations and filings necessary to perfect or give constructive notice of the Liens granted
therein, or (B) stating that, subject to customary assumptions and exclusions (and any other
qualifications and exceptions reasonably acceptable to the Trustee), in the opinion of such
counsel, no such action is necessary to make any Lien purported to be created under such Security
Document effective as intended by this Indenture and such Security Documents.




          (b) If at any time when the Trustee becomes the Collateral Trustee under the Security
Documents, within 30 days after each anniversary of the date of this Indenture, an Opinion of
Counsel in the United States, dated as of such date (which may be in-house counsel to the Company
and which include one or more local counsel opinions as to matters concerning the laws of affected
jurisdictions), either (i) stating that, subject to customary assumptions and exclusions (and any
other qualifications and exceptions reasonably acceptable to the Trustee), in
the opinion of such counsel, such action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and re-filing of this Indenture, the Security
Documents and all supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien of the Security Documents
until the next Opinion of Counsel is required to be rendered pursuant to this paragraph and
reciting the details of such action or referring to prior Opinions of Counsel in which such details
are given and stating that all financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the rights of the Holders and the
Trustee hereunder and under the Security Documents, or (ii) stating that, subject to customary
assumptions and exclusions (and any other qualifications and exceptions reasonably acceptable to
the Trustee), in the opinion of such counsel, no such action is necessary to maintain such Lien,
until the next Opinion of Counsel is required to be rendered pursuant to this paragraph.




          (c) The Company shall furnish to the Trustee the certificate or opinions with respect to
compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)), as the case may be, required by TIA Section 314(d).
Such certificates or opinions will be subject to the terms of TIA Section 314(e). The Company
shall also furnish to the Trustee copies of all amendments, supplements or other documentation with
respect to the Security Documents.




          SECTION 10.3.   Release of Collateral. (a)  Collateral may be released from the Lien and security
interest created by the Security
Documents at any time or from time to time (i) upon the request of the Company pursuant to an
Officers’ Certificate certifying that all terms for release and conditions precedent hereunder and
under the applicable Security Document have been met and specifying (A) the identity of the
Collateral to be released and (B) the provision of this Indenture that authorizes such release or
(ii) on the terms set forth in the Security Documents




95









 







and pursuant to or in connection with a
transaction permitted under this Indenture (without regard to any requirement as to use of
proceeds). To the extent any action on the part of the Trustee is required to effectuate any
release of any Lien on any Collateral the Trustee shall release, and shall give any necessary
consent, waiver or instruction to the Collateral Trustee, to release (at the sole cost and expense
of the Company) (i) all Collateral that is contributed, sold, leased, conveyed, transferred or
otherwise disposed of, provided such contribution, sale, lease, conveyance, transfer or other
disposition is or will be in accordance with the provisions of this Indenture, (without regards to,
the requirement that the net proceeds, if any, from such contribution, sale, lease, conveyance,
transfer or other disposition are or will be applied in accordance with this Indenture) and that no
Default or Event of Default has occurred and is continuing or would occur immediately following
such release; (ii) Collateral which may be released with the consent of Holders pursuant to Article
8 hereof, (iii) all Collateral (except as provided in Article 9 hereof) upon discharge or
defeasance of this Indenture in accordance with Article 9 hereof; (iv) all Collateral upon the
payment in full of all Obligations of the Company with respect to principal, premium, if any, or
interest on the Notes; and (v) Collateral of a Guarantor whose Guarantee is released pursuant to
Section 11.4 hereof (or, in the case of a Foreign Subsidiary Guarantor, whose Guarantee is released
pursuant to the applicable Foreign Subsidiary Guarantee). Upon receipt of such Officers’
Certificate, an Opinion of Counsel and any other opinions or certificates required by this
Indenture and the TIA, the Trustee shall execute, deliver or acknowledge any necessary
or proper instruments of termination, satisfaction or release to evidence the release of any
Collateral permitted or required to be released pursuant to this Indenture and the Security
Documents.




          (b) The Trustee may release Collateral from the Lien and security interest created by this
Indenture and the Security Documents upon the sale or disposition of Collateral or the subjecting
of any Collateral to a Lien securing Indebtedness pursuant to the Trustee’s powers, rights and
duties with respect to remedies provided under any of the Security Documents.




          (c) The release of any Collateral from the terms of this Indenture and the Security Documents
shall not be deemed to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Collateral is released pursuant to the terms hereof. To the extent
applicable, the Company shall cause TIA Section 313(b), relating to reports, and TIA Section
314(d), relating to the release of property or securities from the Lien and security interest of
the Security Documents and relating to the substitution therefor of any property or securities to
be subjected to the Lien and security interest of the Security Documents, to be complied with. Any
certificate or opinion required by TIA Section 314(d) may be made by an Officer of the Company
except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an engineer, appraiser or other expert selected or
approved by the Trustee in the exercise of reasonable care.




          (d) Notwithstanding the foregoing, the Company and each Subsidiary, as the case may be,
pursuant to the terms of this Indenture and the Security Documents, may effect any disposition of
Collateral and such Collateral shall be released from the Lien and security interest created by
this Indenture and the Security Documents without the delivery of any opinions or certificates upon
any such release; provided that (i) Section 4.12 is, or will be, complied with and (ii) any
property or assets acquired with any proceeds of such disposition becomes subject to the



96









 






Lien and
security interest created by this Indenture and the Security Documents; provided,
further, that the Company shall deliver to the Trustee, within 15 days after each of the
six-month periods ended April 15 and October 15 in each year, an Officers’ Certificate to the
effect that all releases of Collateral by the Company or any Subsidiary, as the case may be, during
the preceding six-month period were in accordance with the provisions of the Security Documents and
this Indenture and that all proceeds there from were used by the Company or such Subsidiary as
permitted herein (or will be so used within the time permitted by this Indenture).




          (e) The fair value of Collateral released from the Lien and security interest created by this
Indenture and the Security Documents pursuant to Section 10.3(d) hereof shall not be considered in
determining whether the aggregate fair value of Collateral released from the Lien and security
interest created by this Indenture and the Security Documents in any calendar year exceeds the 10%
threshold specified in Section 314(d)(l) of the TIA; provided that the Company’s right to
rely on this sentence at any time is conditioned upon the Company having furnished to the Trustee
the certificates described in Section 10.3(d) hereof that were required to be furnished to the
Trustee at or prior to such time.




          (f) No Collateral shall be released from the Lien and security interest created by the
Security Documents pursuant to the provisions of the Security Documents unless there shall have
been delivered to the Trustee the certificates required by this Section 10.3.




          (g) Upon satisfaction of Sections 3.5, 9.1, 9.2 (including 9.4) or 9.3 (including 9.4), the
Collateral shall be released from the Lien and any other security interests created under this
Indenture and the Notes and under the Security Documents for the benefit of Noteholders or the
Trustee and all such Liens and security interests shall terminate, without requiring further
compliance with any of the foregoing provisions of this Section 10.3.




          SECTION 10.4.   Protection of the Trust Estate. Subject to the terms of the Collateral Agreement and the other
Security Documents upon
prior written notice to the Collateral Trustee, the Company and the Guarantors, the Trustee shall
have the power (i) to institute and maintain such suits and proceedings as it may deem expedient,
to prevent any impairment of the Collateral under any of the Security Documents; and (ii) to
enforce the obligations of the Company, the Guarantors or any Subsidiary under this Indenture or
the Security Documents, to institute and maintain such suits and proceedings as may be expedient to
prevent any impairment of the Collateral under the Security Documents and in the profits, rents,
revenues and other income arising therefrom; including the power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair any Collateral or be prejudicial to
the interests of the Holders or the Trustee, to the extent permitted thereunder.




          SECTION 10.5.   Certificates of the Company. The Company shall furnish to the Trustee, prior to each proposed
release of Collateral
pursuant to the Security Documents (i) all documents required by TIA Section 314(d) and (ii) an
Opinion of Counsel in the United States, which opinion shall be subject to customary assumptions
and exclusions, to the effect that such accompanying documents constitute all documents required by
TIA Section 314(d). The Trustee may, to the extent permitted by Sections 7.1 and 7.2 hereof, accept
as conclusive evidence of





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compliance with the foregoing provisions the appropriate statements contained in such
documents and such Opinion of Counsel.




          SECTION 10.6.   Certificates of the Trustee. In the event that the Company wishes to
release Collateral in accordance with the Security Documents and has delivered the certificates and
documents required by the Security Documents and Sections 10.3 and 10.5 hereof, the Trustee shall
determine whether it has received all documents required by TIA Section 314(d) in connection with
such release and, based on such determination and the Opinion of Counsel delivered pursuant to
Section 10.5(ii), shall deliver a certificate to the Collateral Agent, setting forth such
determination.




          SECTION 10.7.   Authorization of Actions to be Taken by the Trustee Under the Security
Documents. Subject to the provisions of Sections 7.1 and 7.2 hereof and the Security
Documents, the Trustee may, but is not obligated to, without the consent of the Holders, on behalf
of the Holders, direct the Collateral Trustee to take all actions it deems necessary or appropriate
in order to (a) enforce any of the terms of the Security Documents and (b) collect and receive any
and all amounts payable in respect of the Obligations of the Company hereunder or the Guaranteed
Note Obligations of the Guarantors hereunder or under a Foreign Subsidiary Guarantee. Subject to
the Security Documents, the Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that
may be unlawful or in violation of the Security Documents or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security interest hereunder or
be prejudicial to the interests of the Holders or of the Trustee).




          SECTION 10.8.   Authorization of Receipt of Funds by the Trustee Under the Security
Documents. Subject to the Security Documents, upon an Event of Default and so long as such
Event of Default continues, the Trustee to the extent it is the Collateral Trustee, may exercise in
respect of the Collateral, in addition to the other rights and remedies provided for herein, in the
Security Documents or otherwise available to it, all of the rights and remedies of a secured party
under the Uniform Commercial Code or other applicable law, and the Trustee may also upon obtaining
possession of the Collateral as set forth herein, without notice to the Company, except as
specified below, sell the Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker’s board or at any of the Trustee’s offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as the Trustee may deem
commercially reasonable. The Company acknowledges and agrees that any such private sale may result
in prices and other terms less favorable to the seller than if such a sale were a public sale. The
Company agrees that, to the extent notice of sale shall be required by law, at least 10 days’
notice to the Company of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Trustee shall not be obligated to
make any sale regardless of notice of sale having been given. The Trustee may adjourn any public or
private sale from time to time by announcement at the time



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and place fixed therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.




     Any cash that is Collateral held by the Trustee and all cash proceeds received by the Trustee
in respect of any sale of, collection from, or other realization upon all or any part of the
Collateral shall be applied (unless otherwise provided for in the Security Documents) in accordance
with Section 6.10 hereof, or as the Holders shall direct pursuant to Section 6.5 hereof. Any
surplus of such cash or cash proceeds held by the Trustee and remaining after payment in full of
all the obligations shall be paid over to the Company or as a court of competent jurisdiction may
direct.



          SECTION 10.9.   Termination of Security Interest. Upon the payment in full of all
principal, premium, if any, and interest in respect of the Notes, or upon Legal Defeasance or
Covenant Defeasance, the Trustee shall, at the request of the Company, deliver a certificate to the
Collateral Trustee stating that such Obligations have been paid in full, and instruct the
Collateral Trustee to release the Liens (to the extent they secure the Obligations) pursuant to the
Indenture and the Security Documents.




          SECTION 10.10.   Cooperation of Trustee. In the event the Company or any Guarantor
pledges or grants to the Trustee a security interest in additional Collateral, the Trustee shall
cooperate with the Company or such Guarantor in reasonably and promptly agreeing to the form of,
and executing as required, any instruments or documents necessary to make effective the security
interest in the Collateral to be so pledged. To the extent practicable, the terms of any security
agreement or other instrument or document necessitated by any such pledge shall be comparable to
the provisions of the existing relevant Security Documents. Subject to, and in accordance with the
requirements of this Article 10 and the terms of the Security Documents, in the event that the
Company or any Guarantor engages in any transaction pursuant to Section 10.3, the Trustee, subject
to the provisions of Section 10.3, shall cooperate with the Company or such Guarantor in order to
facilitate such transaction in accordance with any reasonable time schedule proposed by the
Company, including by delivering and releasing the Collateral in a prompt and reasonable manner.




          SECTION 10.11.   Collateral Trustee. The Collateral Trustee may be delegated any one
or more of the duties or rights of the Trustee hereunder or under the Security Documents or which
are specified in any Security Documents, including, the right to hold any Collateral in the name
of, registered to, or in the physical possession of, such Collateral Trustee for the ratable
benefit of the Holders of the Notes and the holders from time to time under the Exit Facility, the
Senior Loans and the Additional Liquidity Facility.




          SECTION 10.12.   Agents Under Security Documents. Each Holder hereby further
authorizes the Trustee on behalf of and for the benefit of the Holders, to be the agent for and
representative of the Holders with respect to the Collateral and the Security Documents and
authorizes the Trustee to appoint and direct the Collateral Trustee to be the agent for and
representative of the Holders with respect to the Collateral and the Security Documents and to act
in its capacity as creditor of the Parallel Debt (as defined in each Foreign Subsidiary Guarantee)
under each Foreign Subsidiary Guarantee.




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ARTICLE 11




DOMESTIC SUBSIDIARY GUARANTEE OF NOTES




          SECTION 11.1.   Domestic Subsidiary Guarantee. Subject to the provisions of this
Article 11, each Domestic Subsidiary Guarantor hereby jointly and severally with the Guarantors
unconditionally and irrevocably guarantees to each Holder and to the Trustee, for itself and on
behalf of the Holders, that: (a) the principal of, premium, if any, or interest on, or Default
Interest, if any, if lawful, on the Notes (including interest accruing after the Maturity of the
Notes and interest accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Company, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding) shall be promptly paid in
full in cash when due, whether at Maturity, by acceleration, redemption or otherwise, if lawful,
and all other Obligations of the Company to the Holders or the Trustee whether for payment of
principal of, premium, if any, or interest on the Notes and all other monetary obligations of the
Company under this Indenture, the Notes and the other Note Documents (including all fees, charges
and disbursements of counsel to the Collateral Trustee, the Trustee or to any Holder of any Note
that are required to be paid by the Company pursuant to any Note Document) shall be promptly paid
in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of
any extension of time of payment or renewal of any Notes or any of such other Obligations, that the
same will be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise (all the foregoing being
hereinafter collectively called the “Guaranteed Note Obligations”). Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall
be jointly and severally obligated to pay the same immediately. Each Domestic Subsidiary Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection.




     Each Domestic Subsidiary Guarantor agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any Note or this Indenture or any other Note Document, any failure to enforce
the provisions of any Note or this Indenture or any other Note Document, any waiver, modification
or indulgence granted to the Company with respect thereto by the Holder of such Note or the
Trustee, any release of any Collateral, or any other circumstances which may otherwise constitute a
legal or equitable discharge of a surety of such Guarantor.



     Each Domestic Subsidiary Guarantor waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to the Domestic Subsidiary
Guarantee and all demands whatsoever, and covenants that the Domestic Subsidiary Guarantee will not
be discharged as to any such Note except by payment in full of the principal thereof, premium if
any, and interest thereon and as provided in Section 9 hereof.



     Each Domestic Subsidiary Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Domestic Subsidiary Guarantor further
agrees that, as between such Guarantor, on the one hand, and the Holders and the Trustee,



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on the other hand, (i) the maturity of the Obligations guaranteed by the Domestic Subsidiary
Guarantee may be accelerated as provided in Article 6 hereof for the purposes of the Domestic
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed thereby, and (ii) in the event of any
declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations
(whether or not due and payable) shall forthwith become due and payable by each Domestic Subsidiary
Guarantor for the purpose of the Domestic Subsidiary Guarantee. In addition, without limiting the
foregoing provisions, upon the effectiveness of an acceleration under Article 6 hereof, the Trustee
shall promptly make a demand for payment on the Notes under any Domestic Subsidiary Guarantee
provided for in this Article 11 and not discharged. Failure to make such demand shall not affect
the validity or enforceability of the Domestic Subsidiary Guarantee upon any Domestic Subsidiary
Guarantor.




     Each Domestic Subsidiary Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company or any Guarantor for liquidation
or reorganization, should the Company or any Guarantor become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or any significant
part of the Company’s or any other Guarantor’s assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable
preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not
been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or
returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.



     Each payment to be made by a Domestic Subsidiary Guarantor in respect of its Guarantee shall
be made without set-off, counterclaim, reduction or diminution of any kind or nature.



     A Domestic Subsidiary Guarantee shall not be valid or become obligatory for any purpose with
respect to a Note unless the certificate of authentication on such Note shall have been signed by
or on behalf of the Trustee.



     Each Domestic Subsidiary Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by the Trustee as a representative of
any Holder in enforcing any rights under this section.



          SECTION 11.2.   Execution and Delivery of Supplemental Indentures. Each Subsidiary
which is required to become a Domestic Subsidiary Guarantor pursuant to Sections 4.22 or 4.26
hereof shall promptly execute and deliver to the Trustee a supplemental indenture substantially in
the form of Exhibit B hereto pursuant to which such Subsidiary shall become a Domestic Subsidiary
Guarantor under this Article 11 and shall guarantee the Obligations as set forth in Section 11.1.
Concurrently with the execution and delivery of such supplemental indenture, the Company shall
deliver to the Trustee an Opinion of Counsel and an Officers’ Certificate to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such Subsidiary and
that, subject to the application of bankruptcy, insolvency,



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moratorium, fraudulent conveyance or transfer and other similar laws relating to creditors’
rights generally and to the principles of equity, whether considered in a proceeding at law or in
equity, the Domestic Subsidiary Guarantee of such Subsidiary is a legal, valid and binding
obligation of such Subsidiary, enforceable against such Subsidiary in accordance with its terms.




          SECTION 11.3.   Limitation of Domestic Subsidiary Guarantee. Each Domestic Subsidiary
Guarantor, and, by its acceptance of Notes, each Holder, hereby confirms that it is the intention
of all such parties that the Domestic Subsidiary Guarantee of such Domestic Subsidiary Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law
to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Domestic Subsidiary Guarantors hereby irrevocably agree that the obligations of
each Domestic Subsidiary Guarantor will be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations
under this Indenture, result in the obligations of such Domestic Subsidiary Guarantor under the
Domestic Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
Federal or state law. Each Domestic Subsidiary Guarantor that makes a payment under its Guarantee
shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a
contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of
such payment determined in accordance with GAAP.




          SECTION 11.4.   Release of Domestic Subsidiary Guarantor. A Domestic Subsidiary
Guarantor shall be released from all of its obligations under its Domestic Subsidiary Guarantee if:





     (i) all the Capital Stock of a Domestic Subsidiary Guarantor shall be sold,
transferred or otherwise disposed of (but other than to any other Guarantor); or




     (ii) a Domestic Subsidiary Guarantor shall enter into any merger, consolidation
or amalgamation with a Person that is not a Guarantor (and is not required to be a
Guarantor) and such Domestic Subsidiary Guarantor is not the survivor of such
merger, consolidation or amalgamation; or




     (iii) a Domestic Subsidiary Guarantor shall liquidate, wind up or dissolve
itself (or be liquidated or dissolved),


in each case, in a transaction in compliance with (or that will comply with) Sections 4.12 and 5.1
hereof to the extent applicable and, in each case, the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to such transactions have been complied with. At the written request of the
Company, the Trustee will promptly execute and deliver appropriate instruments in forms



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reasonably acceptable to the Company evidencing and further implementing any releases or discharges
pursuant to the foregoing provisions.




          SECTION 11.5.   Subrogation. Each Domestic Subsidiary Guarantor shall be subrogated
to all rights of Holders of against the Company in respect of any amounts paid by any Guarantor
pursuant to the provisions of Section 11.1 (or, in the case of a Foreign Subsidiary Guarantor,
pursuant to the provisions of the applicable Foreign Subsidiary Guarantee); provided that,
if an Event of Default has occurred and is continuing, no Domestic Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Company under this Indenture, the Notes
or the other Note Documents shall have been paid in full.




          SECTION 11.6.   Benefits Acknowledged. Each Domestic Subsidiary Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its
Guarantee are knowingly made in contemplation of such benefits.




          SECTION 11.7.   Evidence of Domestic Subsidiary Guarantees. Each Domestic Subsidiary
Guarantor hereby agrees that its execution and delivery of this Indenture or any supplemental
indenture pursuant to Section 11.2 hereof shall evidence its Domestic Subsidiary Guarantee set
forth in Section 11.1 without the need for any further notation on any Notes, and further agrees
that its Domestic Subsidiary Guarantee set forth in Section 11.1 shall remain in full force and
effect notwithstanding any failure to include or endorse on any Note a notation relating to such
Guarantee. The delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Domestic Subsidiary Guarantee set forth in this Indenture on
behalf of the Domestic Subsidiary Guarantors.




ARTICLE 12




SUBORDINATION




          SECTION 12.1.   Notes Subordinated to Designated Senior Debt. The Company covenants
and agrees, and the Trustee and each Holder of the Notes, by its acceptance thereof, likewise
covenants and agrees, that all Notes shall be issued subject to the provisions of this Article 12;
and the Trustee and each Person holding any Note, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the payment of all Obligations on the Notes
by the Company shall, to the extent and in the manner herein set forth, be subordinated and junior
in right of payment to the prior payment in full in cash or Cash Equivalents of all obligations on
the Designated Senior Debt; that the subordination is for the benefit of, and shall be enforceable
directly by, the holders of Designated Senior Debt (including the obligations under or with respect
to the Exit Facility) and that each holder of Designated Senior Debt whether now outstanding or
hereafter created, incurred, assumed or guaranteed shall be deemed to have acquired Designated
Senior Debt in reliance upon the covenants and provisions contained in this Indenture and the
Notes.




          Notwithstanding the foregoing, payments and distributions made with U.S. Legal Tender or the
proceeds of U.S. Government Obligations held in any defeasance trust (as



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described in Section 9.5) shall not be subordinated in right of payment to any Designated
Senior Debt, so long as all of the conditions to deposit into such trust are satisfied at the time
of such deposit and such payments and distributions are otherwise permitted by the terms of all
Designated Senior Debt.




          SECTION 12.2.   No Payment on Notes in Certain Circumstances.




          (a) Unless Section 12.3 shall be applicable, if any default occurs and is continuing in the
payment when due, whether at maturity, upon redemption, by declaration or otherwise, of any
principal of, premium (if any) on, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Designated Senior Debt, no payment or
distribution of any kind or character shall be made by, or on behalf of, the Company or any other
Person on its or their behalf with respect to any Obligations on or relating to the Notes, or to
acquire any of the Notes for cash or property or otherwise, including Permitted Open Market
Purchases.




          In addition, unless Section 12.3 shall be applicable, if any other event of default occurs and
is continuing with respect to any Designated Senior Debt, as such event of default is defined in
the instrument creating or evidencing such Designated Senior Debt, permitting the holders of such
Designated Senior Debt then outstanding to accelerate the maturity thereof and if the
representative for the respective issue of Designated Senior Debt gives written notice of the event
of default to the Trustee (a “Default Notice”), then, unless and until all events of default have
been cured or waived or have ceased to exist or the Trustee receives notice thereof from the
representative for the respective issue of Designated Senior Debt terminating the Blockage Period
(as defined below), during the 180 days after the delivery of such Default Notice (the “Blockage
Period”), neither the Company nor any other Person on its behalf shall (x) make any payment of any
kind or character with respect to any Obligations on, or with respect to the Notes or (y) acquire
any of the Notes for cash or property or otherwise, including any Permitted Open Market Purchases.
Notwithstanding anything herein to the contrary, (I) in no event will a Blockage Period extend
beyond 180 days from the date the applicable Default Notice is received by the Trustee and (II)
only one such Blockage Period may be commenced within any 360 consecutive days.




          No non-payment event of default which existed or was continuing on the date of the
commencement of any Blockage Period with respect to the Designated Senior Debt shall be, or be
made, the basis for the commencement of a subsequent Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial covenants for a period
commencing after the date of commencement of such Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of default previously
existed or was continuing shall constitute a new event of default for this purpose).




          (b) In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Holder when such payment is prohibited by Section 12.2(a), such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the



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holders of Designated Senior Debt (pro rata to such holders on the basis of the respective
amount of Designated Senior Debt held by such holders) or their respective Representatives, as
their respective interests may appear. The Trustee shall be entitled to rely on information
regarding amounts then due and owing on the Designated Senior Debt, if any, received from the
holders of Designated Senior Debt (or their Representatives) or, if such information is not
received from such holders or their Representatives, from the Company and only amounts included in
the information provided to the Trustee shall be paid to the holders of Designated Senior Debt.




          Nothing contained in this Article 12 shall limit the right of the Trustee or the Holders to
take any action to accelerate the maturity of the Notes pursuant to Section 6.2 or to pursue any
rights or remedies hereunder (subject, however, to the rights, if any, under this Article 12, of
the holders of Designated Senior Debt in respect of cash or other property of the Company received
upon the exercise of any such remedy); provided that all Designated Senior Debt thereafter
due or declared to be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment of any kind or character with respect to Obligations
on, or with respect to, the Notes.




          SECTION 12.3.   Payment Over of Proceeds upon Dissolution, Etc.




          (a) Upon any payment or distribution of assets of the Company of any kind or character,
whether in cash, property, or securities, to creditors upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors or marshaling of
assets of the Company or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or involuntary, all
obligations due or to become due upon all Designated Senior Debt shall first be paid in full in
cash or Cash Equivalents (including interest after the commencement of any bankruptcy or other like
proceeding at the rate specified in the applicable Designated Senior Debt, whether or not such
interest is an allowed claim in any such proceeding), before any payment or distribution of any
kind or character is made on account of any Obligations on, or with respect to, the Notes, or for
the acquisition of any of the Notes for cash or property or otherwise, including any Permitted Open
Market Purchases. Upon any such dissolution, winding-up, liquidation, reorganization, receivership
or similar proceeding, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders or by the Trustee under this Indenture if received by them,
directly to the holders of Designated Senior Debt (pro rata to such holders on the
basis of the respective amounts of Designated Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to which any of such
Designated Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of Designated Senior Debt remaining unpaid until all such Designated
Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefore to or for the holders of Designated Senior Debt.




          (b) To the extent any payment of Designated Senior Debt (whether by or on behalf of the
Company, as proceeds of security or enforcement of any right of setoff or



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otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to
any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment
is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Designated Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.




          It is further agreed that any diminution (whether pursuant to court decree or otherwise,
including without limitation for any of the reasons described in the preceding paragraph) of the
Company’s obligation to make any distribution or payment pursuant to any Designated Senior Debt,
except to the extent such diminution occurs by reason of the repayment (which has not been
disgorged or returned) of such Designated Senior Debt in cash or Cash Equivalents, shall have no
force or effect for purposes of the subordination provisions contained in this Article 12, with any
turnover of payments as otherwise calculated pursuant to this Article 12 to be made as if no such
diminution has occurred.




          (c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities, shall be received by
the Trustee or any Holder when such payment or distribution is prohibited by Section 12.3(a), such
payment or distribution shall be held in trust for the benefit of, and shall be paid over or
delivered directly to, the holders of Designated Senior Debt (pro rata to such
holders on the basis of the respective amounts of Designated Senior Debt held by such holders) or
their respective Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Designated Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of Designated Senior Debt remaining unpaid until all such
Designated Senior Debt has been paid in full in cash or Cash Equivalents, after giving effect to
any concurrent payment, distribution or provision therefore to or for the holders of such
Designated Senior Debt.




          (d) The consolidation of the Company with, or the merger of the Company with or into, another
corporation or the liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets, to another corporation upon the terms and conditions
provided in Article 5 hereof and as long as permitted under the terms of the Designated Senior Debt
shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section if such other corporation shall, as a part of such consolidation, merger, conveyance
or transfer, assume the Company’s obligations hereunder in accordance with Article 5 hereof.




          SECTION 12.4.   Payments May Be Paid Prior to Dissolution. Nothing contained in this
Article 12 or elsewhere in this Indenture shall prevent (i) the Company, except under the
conditions described in Sections 12.2 and 12.3, from making payments at any time for the purpose of
making payments of principal of and premium, if any, and interest on the Notes, or from depositing
with the Trustee any moneys for such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment would be prohibited by Section 12.2, 12.3, 13.2 or 13.3, the
application by the Trustee of any moneys deposited with it for the purpose of making such payments
of principal of, and premium, if any, and interest on, the Notes to the Holders



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entitled thereto unless at least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Trust Officer shall have actually received the written
notice provided for in Section 12.7 (provided that, notwithstanding the foregoing, the
Holders receiving any payments made in contravention of Sections 12.2 and/or 12.3 (and the
respective such payments) shall otherwise be subject to the provisions of the first sentence of
Section 12.2(a) and Section 12.3). The Company shall give prompt written notice to the Trustee of
any dissolution, winding-up, liquidation or reorganization of the Company, although any delay or
failure to give any such notice shall have no effect on the subordination provisions contained
herein.




          SECTION 12.5.   Subrogation. Subject to the payment in full in cash or Cash
Equivalents of all Designated Senior Debt, the Holders of the Notes shall be subrogated to the
rights of the holders of Designated Senior Debt to receive payments or distributions of cash,
property or securities of the Company applicable to the Designated Senior Debt until the Notes
shall be paid in full; and, for the purposes of such subrogation, no such payments or distributions
to the holders of the Guarantor Senior Debt by or on behalf of the Company or by or on behalf of
the Holders by virtue of this Article 12 which otherwise would have been made to the Holders shall,
as between the Company and the Holders of the Notes, be deemed to be a payment by the Company to or
on account of the Designated Senior Debt, it being understood that the provisions of this Article
12 are and are intended solely for the purpose of defining the relative rights of the Holders, on
the one hand, and the holders of the Designated Senior Debt, on the other hand.




          SECTION 12.6.   Obligations of the Company Unconditional. Nothing contained in this
Article 12 or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among
the Company, its creditors other than the holders of Designated Senior Debt, and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal
of and premium, if any, and interest on the Notes as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Designated Senior Debt, nor
shall anything herein or therein prevent the Holder of any Note or the Trustee on its behalf from
exercising all remedies otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.




          SECTION 12.7.   Notice to Trustee. The Company shall give prompt written notice to
the Trustee of any fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this Article 12, although any
delay or failure to give any such notice shall have no effect on the subordination provisions
contained herein. Regardless of anything to the contrary contained in this Article 12 or elsewhere
in this Indenture, the Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Designated Senior Debt or of any other facts which would
prohibit the making of any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing from the Company, or from a holder of Designated Senior Debt or a
Representative therefor, and, prior to the receipt of any such written notice, the Trustee shall be
entitled to assume (in the absence of actual knowledge to the contrary) that no such facts exist
(provided that, notwithstanding the foregoing, the Holders of the Notes receiving any
payments made in contravention of Section 12.2 and/or 12.3 (and the respective such



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payments) shall otherwise be subject to the provision of the first sentence of Section 12.2(a)
and Section 12.3). The Trustee shall be entitled to rely on the delivery to it of any notice
pursuant to this Section 12.7 to establish that such notice has been given by a holder of
Designated Senior Debt (or a Representative therefor).




          In the event that the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Designated Senior Debt to participate in any
payment or distribution pursuant to this Article 12, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of Designated Senior Debt
held by such Person, the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this Article 12, and
if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.




          SECTION 12.8.   Reliance on Judicial Order or Certificate of Liquidating Agent. Upon
any payment or distribution of assets of the Company referred to in this Article 12, the Trustee,
subject to the provisions of Article 7 hereof, and the Holders of the Notes shall be entitled to
rely conclusively upon any order or decree made by any court of competent jurisdiction in which any
insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization or
similar case or proceedings is pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or the Holders of the Notes,
for the purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Designated Senior Debt and other Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 12.




          SECTION 12.9.   Trustee’s Relation to Designated Senior Debt. The Trustee and any
agent of the Company or the Trustee shall be entitled to all the rights set forth in this Article
12 with respect to any Designated Senior Debt which may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of Designated Senior Debt and nothing
in this Indenture shall deprive the Trustee or any such agent of any of its rights as such holder.




          With respect to the holders of Designated Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article
12, and no implied covenants or obligations with respect to the holders of Designated Senior Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Designated Senior Debt.




          Whenever a distribution is to be made or a notice given to holders or owners of Designated
Senior Debt, the distribution may be made and the notice may be given to their Representative, if
any.




          SECTION 12.10.   Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Designated Senior Debt. No right of any present or future holders of any Designated
Senior Debt to enforce subordination as provided herein shall at any time in any



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way be prejudiced or impaired by any act or failure to act on the part of the Company or by
any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms of this Indenture, regardless of any knowledge thereof which any such holder
may have or otherwise be charged with.




          Without in any way limiting the generality of the foregoing paragraph, the holders of
Guarantor Senior Debt may, at any time and from time to time, without the consent of or notice to
the Trustee or the Holders, without incurring responsibility to the Trustee or the Holders and
without impairing or releasing the subordination provided in this Article 12 or the obligations
hereunder of the Holders to the holders of the Guarantor Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Designated Senior Debt, or otherwise amend or supplement in any manner Designated
Senior Debt, or any instrument evidencing the same or any agreement under which Guarantor Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Designated Senior Debt; (iii) release any Person liable in any
manner for the payment or collection of Designated Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.




          SECTION 12.11.   Noteholders Authorize Trustee To Effectuate Subordination of Notes.
Each Holder by its acceptance of them authorizes and expressly directs the Trustee on its behalf to
take such action as may be necessary or appropriate to effectuate, as between the holders of
Designated Senior Debt and the Holders, the subordination provided in this Article 12, and appoints
the Trustee its attorney-in-fact for such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets of the Company, the
filing of a claim for the unpaid balance of its Notes and accrued interest in the form required in
those proceedings.




          If the Trustee does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such claim or claims, then
the holders of the Designated Senior Debt or their Representatives are hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim for and on behalf of
the Holders of said Notes. Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Designated Senior Debt or their Representatives to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Designated Senior Debt or their Representatives to vote in respect of the claim of any Holder in
any such proceeding.




          SECTION 12.12.   This Article 12 Not To Prevent Events of Default. The failure to
make a payment on account of principal of or interest on the Notes by reason of any provision of
this Article 12 will not be construed as preventing the occurrence of an Event of Default.




          SECTION 12.13.   Trustee’s Compensation Not Prejudiced. Nothing in this Article 12
will apply to amounts due to the Trustee pursuant to other sections in this Indenture.




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ARTICLE 13




SUBORDINATION OF THE DOMESTIC SUBSIDIARY GUARANTEES




          SECTION 13.1.   Domestic Subsidiary Guarantees Subordinated to Guarantor Senior Debt.
Each Domestic Subsidiary Guarantor covenants and agrees, and the Trustee and each Holder by
accepting a Note, covenants and agrees, that the obligations of such Domestic Subsidiary Guarantor
hereunder are subordinated and junior in right of payment, to the extent and in the manner provided
in this Article 13, to the prior payment in full in cash or Cash Equivalents of all obligations on
the Guarantor Senior Debt of such Guarantor and that the subordination is for the benefit of, and
enforceable directly by, the holders of such Guarantor Senior Debt of such Guarantor (including any
obligations under or with respect to the Exit Facility or Senior Loans), and that each holder of
Guarantor Senior Debt whether now outstanding or hereafter created, incurred, assumed or guaranteed
shall be deemed to have acquired Guarantor Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes.




          Notwithstanding the foregoing, payments and distributions made with U.S. Legal Tender or the
proceeds of U.S. Government Obligations held in any defeasance trust (as described in Section 9.5)
shall not be subordinated in right of payment to any Guarantor Senior Debt, so long as all the
conditions to deposit into such trust are satisfied at the time of such deposit and such payments
and distributions are otherwise permitted by the terms of all Guarantor Senior Debt.




          SECTION 13.2.   Guarantees in Certain Circumstances. (a) Unless Section 13.3 shall
be applicable, if any default occurs and is continuing in the payment when due, whether at
maturity, upon redemption, by declaration or otherwise, of any principal of, premium (if any) on,
interest on, unpaid drawings for letters of credit issued in respect of, or regularly accruing fees
with respect to, any Guarantor Senior Debt, no payment or distribution of any kind or character
shall be made by, or on behalf of, such Domestic Subsidiary Guarantor or any other Person on its or
their behalf with respect to any Guaranteed Note Obligations, or to acquire any of the Guarantees
for cash or property or otherwise. At any time while any Blockage Period is in existence, neither
any Domestic Subsidiary Guarantor nor any other Person on any Domestic Subsidiary Guarantors’
behalf shall (x) make any payment of any kind or character with respect to any obligations on its
Guarantee or (y) acquire any of the Notes for cash or property or otherwise, including any
Permitted Open Market Purchases.




          (b) In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Holder when such payment is prohibited by Section 13.2(a), such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the holders of Guarantor
Senior Debt (pro rata to such holders on the basis of the respective amount of Guarantor Senior
Debt held by such holders) or their Representatives, as their respective interests may appear. The
Trustee shall be entitled to rely on information regarding amounts then due and owing on the
Guarantor Senior Debt, if any, received from the holders of Guarantor Senior Debt (or their
Representatives) or, if such information is not received from such holders or their
Representatives, from the Domestic Subsidiary Guarantor and only amounts included in the
information provided to the Trustee shall be paid to the holders of Guarantor Senior Debt.




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          Nothing contained in this Article 13 shall limit the right of the Trustee or the Holders to
take any action to accelerate the maturity of the Notes pursuant to Section 6.2 or to pursue any
rights or remedies hereunder (subject, however, to the rights, if any, under this Article 13, of
the holders of Guarantor Senior Debt, in respect of cash or other property of such Domestic
Subsidiary Guarantor received upon the exercise of such remedy); provided that all
Guarantor Senior Debt thereafter due or declared to be due shall first be paid in full in cash or
Cash Equivalents before the Holders are entitled to receive any payment of any kind or character
with respect to Guaranteed Note Obligations on, or with respect to, the Notes.




          SECTION 13.3.   Payment Over of Proceeds upon Dissolution, Etc. (a) Upon any payment
or distribution of assets of a Domestic Subsidiary Guarantor of any kind or character, whether in
cash, property, or securities, to creditors upon any total or partial liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or marshaling of assets of a
Domestic Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceedings relating to a Domestic Subsidiary Guarantor or its property, whether voluntary
or involuntary, all Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents
(including interest after the commencement of any bankruptcy or like proceeding at the rate
specified in the applicable Guarantor Senior Debt, whether or not such interest is an allowed claim
in any such proceeding), before any payment or distribution of any kind or character is made on
account of any Guaranteed Note Obligations on, or with respect to, the Notes, or for the
acquisition of any of the Notes for cash or property or otherwise. Upon any such dissolution,
winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of a Domestic Subsidiary Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders of the Notes and the Domestic Subsidiary
Guarantees or the Trustee under this Indenture would be entitled, except for the provisions hereof,
shall be paid by such Domestic Subsidiary Guarantor or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution, or by the Holders
or by the Trustee under this Indenture if received by them, directly to the holders of Guarantor
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Guarantor Senior Debt may have been
issued, as their respective interests may appear, for application to the payment of Guarantor
Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full in cash or
Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefore
to or for the holders of such Guarantor Senior Debt.




          (b) To the extent any payment of Guarantor Senior Debt (whether by or on behalf of such
Domestic Subsidiary Guarantor, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment
is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Guarantor Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.




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          It is further agreed that any diminution (whether pursuant to court decree or otherwise,
including without limitation for any of the reasons described in the preceding paragraph) of such
Domestic Subsidiary Guarantor’s obligation to make any distribution or payment pursuant to any
Guarantor Senior Debt, except to the extent such diminution occurs by reason of the repayment
(which has not been disgorged or returned) of such Guarantor Senior Debt in cash or Cash
Equivalents, shall have no force or effect for purposes of the subordination provisions contained
in this Article 13, with any turnover of payments as otherwise calculated pursuant to this Article
13 to be made as if no such diminution has occurred.




          (c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of
any Domestic Subsidiary Guarantor of any kind or character, whether in cash, property or
securities, shall be received by the Trustee, any Holder when such payment or distribution is
prohibited by Section 13.3(a), such payment or distribution shall be held in trust for the benefit
of, and shall be paid over or delivered directly to, the holders of Guarantor Senior Debt
(pro rata to such holders on the basis of the respective amounts of Guarantor
Senior Debt held by such holders) or their Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Guarantor Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Guarantor Senior Debt remaining
unpaid until all such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents,
after giving effect to any concurrent payment, distribution or provision therefore to or for the
holders of such Guarantor Senior Debt.




          (d) The consolidation of a Domestic Subsidiary Guarantor with, or the merger of a Domestic
Subsidiary Guarantor with or into, another corporation or the liquidation or dissolution of a
Domestic Subsidiary Guarantor following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in Article 5 hereof and
as long as permitted under the terms of the Guarantor Senior Debt shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such
other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume
the Domestic Subsidiary Guarantor’s obligations hereunder in accordance with Article 5 hereof.




          SECTION 13.4.   Payments May Be Paid Prior to Dissolution. Nothing contained in this
Article 13 or elsewhere in this Indenture shall prevent (i) a Domestic Subsidiary Guarantor, except
under the conditions described in Sections 13.2 and 13.3, from making payments at any time for the
purpose of making payments of principal of, and premium, if any, and interest on the Domestic
Subsidiary Guarantees, or from depositing with the Trustee any moneys for such payments, or (ii) in
the absence of actual knowledge by the Trustee that a given payment would be prohibited by Section
13.2 or 13.3, the application by the Trustee of any moneys deposited with it for the purpose of
making such payments pursuant to the Domestic Subsidiary Guarantees to the Holders entitled thereto
unless at least two Business Days prior to the date upon which such payment would otherwise become
due and payable a Trust Officer shall have actually received the written notice provided for in
Section 13.7 (provided that, notwithstanding the foregoing, the Holders receiving any
payments made in contravention of Sections 13.2 and/or 13.3 (and the respective such payments)
shall otherwise be subject to the provisions of the first sentence of Section 13.2(a) and Section
13.3). Each Domestic Subsidiary Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding-up,



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liquidation or reorganization of such Domestic Subsidiary Guarantor, although any delay or
failure to give any such notice shall have not effect on the subordination provisions contained
herein.




          SECTION 13.5.   Subrogation. Subject to the payment in full in cash or Cash
Equivalents of all Guarantor Senior Debt of a Domestic Subsidiary Guarantor, the Holders of the
Notes shall be subrogated to the rights of the holders of Guarantor Senior Debt to receive payments
or distributions of cash, property or securities of such Guarantor applicable to such Guarantor
Senior Debt until the Guaranteed Note Obligations shall be paid in full; and, for the purposes of
such subrogation, no such payments or distributions to the holders of the Guarantor Senior Debt by
or on behalf of such Guarantor or by or on behalf of the Holders by virtue of this Article 13 which
otherwise would have been made to the Holders shall, as between the Domestic Subsidiary Guarantor
and the Holders of the Notes, be deemed to be a payment by the Domestic Subsidiary Guarantor to or
on account of the Guarantor Senior Debt, it being understood that the provisions of this Article 13
are and are intended solely for the purpose of defining the relative rights of the Holders of the
Domestic Subsidiary Guarantees, on the one hand, and the holders of the Guarantor Senior Debt, on
the other hand.




          SECTION 13.6.   Obligations of each Domestic Subsidiary Guarantor Unconditional.
Nothing contained in this Article 13 or elsewhere in this Indenture, the Guarantees or in the Notes
is intended to or shall impair, as among each Domestic Subsidiary Guarantor, its creditors other
than the holders of Guarantor Senior Debt, and the Holders, the obligation of each Domestic
Subsidiary Guarantor, which is absolute and unconditional, to pay to the Holders the Guaranteed
Note Obligations as and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and creditors of each Domestic
Subsidiary Guarantor other than the holders of the Guarantor Senior Debt, nor shall anything herein
or therein prevent the Holder of any Domestic Subsidiary Guarantee or the Trustee on its behalf
from exercising all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, in respect of cash, property or securities of the
Domestic Subsidiary Guarantor received upon the exercise of any such remedy.




          SECTION 13.7.   Notice to Trustee. Each Domestic Subsidiary Guarantor shall give
prompt written notice to the Trustee of any fact known to each such Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of each Domestic Subsidiary Guarantee
pursuant to the provisions of this Article 13, although any delay or failure to give any such
notice shall have no effect on the subordination provisions contained herein. Regardless of
anything to the contrary contained in this Article 13 or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of default with
respect to any Guarantor Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received notice in writing
from such Guarantor, or from a holder of Guarantor Senior Debt or a Representative therefor, and,
prior to the receipt of any such written notice, the Trustee shall be entitled to assume (in the
absence of actual knowledge to the contrary) that no such facts exist (provided that,
notwithstanding the foregoing, the Holders of the Notes receiving any payments made in
contravention of Section 13.2 and/or 13.3 (and the respective such payments) shall otherwise be
subject to the provisions of the first sentence of Section 13.2(a) and Section 13.3). The Trustee



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shall be entitled to rely on the delivery to it of any notice pursuant to this Section 13.7 to
establish that such notice has been given by a holder of Guarantor Senior Debt (or a Representative
therefor).




          In the event that the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Guarantor Senior Debt to participate in any
payment or distribution pursuant to this Article 13, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior Debt
held by such Person, the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this Article 13, and
if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.




          SECTION 13.8.   Reliance on Judicial Order or Certificate of Liquidating Agent. Upon
any payment or distribution of assets of a Domestic Subsidiary Guarantor referred to in this
Article 13, the Trustee, subject to the provisions of Article 7 hereof, and the Holders of the
Notes shall be entitled to rely conclusively upon any order or decree made by any court of
competent jurisdiction in which any insolvency, bankruptcy, receivership, dissolution, winding-up,
liquidation, reorganization or similar case or proceedings is pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered to the Trustee or
the Holders of the Domestic Subsidiary Guarantees, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the holders of the Guarantor Senior Debt
and other Indebtedness of the Domestic Subsidiary Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article 13.




          SECTION 13.9.   Trustee’s Relation to Guarantor Senior Debt. The Trustee and any
agent of the Company or the Trustee shall be entitled to all the rights set forth in this Article
13 with respect to any Guarantor Senior Debt which may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of Guarantor Senior Debt and nothing
in this Indenture shall deprive the Trustee or any such agent of any of its rights as such holder.




          With respect to the holders of Guarantor Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article
13, and no implied covenants or obligations with respect to the holders of Guarantor Senior Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Guarantor Senior Debt.




          Whenever a distribution is to be made or a notice given to holders or owners of Guarantor
Senior Debt, the distribution may be made and the notice may be given to their Representatives, if
any.




          SECTION 13.10.   Subordination Rights Not Impaired by Acts or Omissions of the Company,
the Domestic Subsidiary Guarantors or Holders of Guarantor Senior Debt. No right of any
present or future holders of any Guarantor Senior Debt to enforce subordination as



114









 






provided herein shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of any Domestic Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by such Guarantor with the terms of this
Indenture or the Domestic Subsidiary Guarantee regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.




          Without in any way limiting the generality of the foregoing paragraph, the holders of
Guarantor Senior Debt may, at any time and from time to time, without the consent of or notice to
the Trustee or Holders, without incurring responsibility to the Trustee or the Holders of the
Domestic Subsidiary Guarantees and without impairing or releasing the subordination provided in
this Article 13 or the obligations hereunder of the Holders of the Domestic Subsidiary Guarantees
to the holders of the Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or alter, Guarantor
Senior Debt, or otherwise amend or supplement in any manner Guarantor Senior Debt, or any
instrument evidencing the same or any agreement under which Guarantor Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise
securing Guarantor Senior Debt; (iii) release any Person liable in any manner for the payment or
collection of Guarantor Senior Debt; and (iv) exercise or refrain from exercising any rights
against the Domestic Subsidiary Guarantor and any other Person.




          SECTION 13.11.   Holders Authorize Trustee To Effectuate Subordination of the Domestic
Subsidiary Guarantees. Each Holder authorizes and expressly directs the Trustee on its behalf
to take such action as may be necessary or appropriate to effectuate, as between the holders of
Guarantor Senior Debt and the Holders of the Domestic Subsidiary Guarantees, the subordination
provided in this Article 13, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or reorganization of a Domestic
Subsidiary Guarantor (whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of such Guarantor, the filing of a claim for the unpaid
balance of its Guaranteed Note Obligations and accrued interest in the form required in those
proceedings.




          If the Trustee does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such claim or claims, then
the holders of the Guarantor Senior Debt or their Representatives are hereby authorized to have the
right to file and are hereby authorized to file an appropriate claim for and on behalf of the
Holders of the Notes. Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Guarantor Senior Debt or their Representatives to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Guarantor Senior Debt or their Representatives to vote in respect of the claim of any Holder in
any such proceeding.




          SECTION 13.12.   This Article 13 Not To Prevent Events of Default. The failure of a
Domestic Subsidiary Guarantor to make payment on any of its obligations by reason of any provision
of this Article 13 will not be construed as preventing the occurrence of a default by



115









 






such Domestic Subsidiary Guarantor under such obligations. Nothing in this Article 13 shall
have any effect on the right of the Holders or the Trustee to make a demand for payment on a
Guarantor pursuant to Article 11 (or, in the case of a Foreign Subsidiary Guarantor, pursuant to
the applicable Foreign Subsidiary Guarantee).




          SECTION 13.13.   Trustee’s Compensation Not Prejudiced. Nothing in this Article 13
will apply to amounts due to the Trustee pursuant to other sections in this Indenture.




ARTICLE 14




MISCELLANEOUS




          SECTION 14.1.   Conflict with the TIA. If any provision of this Indenture limits,
qualifies or conflicts with any duties under any required provision of the TIA imposed heron by
Section 318(c) of the TIA, such required provision of the TIA shall control.




          SECTION 14.2.   Notices. Any notice or communication shall be given in writing and
delivered in person, sent by facsimile, sent by e-mail, delivered by commercial courier service or
mailed by first-class mail, postage prepaid, addressed as follows:



if to the Company or any Guarantor:



FEDERAL-MOGUL CORPORATION

Attention: David A. Bozynski

26555 Northwestern Highway

Southfield, MI 48033



Telephone: (248) 354-9469

Facsimile: (248) 354-6746

with a copy to: Robert L. Katz

Telephone: (248) 354-9924

Facsimile: (248) 354-2659



with a copy to:



SIDLEY AUSTIN LLP

James F. Conlan, Esq.

Larry A. Barden, Esq.

One South Dearborn Street

Chicago, IL 60603

Telephone: (312) 853-7000

Facsimile: (312) 853-7036




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if to the Trustee:



U.S. BANK NATIONAL ASSOCIATION

Attention: Corporate Trust Administration

60 Livingston Avenue

EP-MN-WS3C

St. Paul, MN 55107-2292

Facsimile: (651) 495-8097

E-mail: richard.prokosch@usbank.com; raymond.haverstock@usbank.com




     Such notices or communications shall be effective when received and shall be sufficiently
given if so given within the time prescribed in this Indenture.



     The Company, any Guarantors or the Trustee by written 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 such Holder by first-class
mail, postage prepaid, at such Holder’s address shown on the register kept by the Registrar. Any
notice or communication sent to a Holder by facsimile shall be sent to such Holder’s facsimile
number, if any, shown on the register kept by the Registrar. If a notice or communication to a
Holder is mailed or sent by facsimile in the manner provided above, it shall be deemed duly given
on the date so deposited in the mail or sent by facsimile, as the case may be, whether or not the
addressee receives it.



     Failure to mail or transmit a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.



     In case, by reason of the suspension of regular mail or telephone service, or by reason of any
other cause, it shall be impossible to mail or transmit any notice as required by this Indenture,
then such method of notification as shall be made with the approval of the Trustee shall constitute
a sufficient mailing or transmission of such notice.



          SECTION 14.3.   Communication by Holders with Other Holders. Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee and anyone else shall have the protection of TIA Section
312(c).




          SECTION 14.4.   Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company or any Guarantor to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:





     (1) an Officers’ Certificate (which shall include the statements set forth in Section
14.5 below) in form and substance reasonably satisfactory to the Trustee 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;




     (2) an Opinion of Counsel (which shall include the statements set forth in Section 14.5
below) in form and substance reasonably satisfactory to the Trustee stating



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that, in the opinion of such counsel, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with; and




     (3) where applicable, a certificate or opinion by an independent certified public
accountant satisfactory to the Trustee that complies with TIA Section 314(c).



          SECTION 14.5.   Statements Required in Certificate and Opinion. Each certificate and
opinion with respect to compliance with a condition or covenant provided for in this Indenture
shall include:





     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




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




     (3) a statement that, in the opinion of 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




     (4) a statement as to whether or not, in the opinion of such Person, such covenant or
condition has been complied with.



          SECTION 14.6.   When Treasury Notes Disregarded. In determining whether the Holders
of the required aggregate principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, any Guarantor or any other obligor on the Notes or by any
Affiliate of any of them shall be disregarded as though they were not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which the Trustee actually knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect
to the Notes and that the pledgee is not the Company, a Guarantor or any other obligor upon the
Notes or any Affiliate of any of them.




          SECTION 14.7.   Rules by Trustee and Agents. The Trustee may make reasonable rules
for action by or meetings of Holders. The Registrar and Paying Agent may make reasonable rules for
their functions.




          SECTION 14.8.   Business Days; Legal Holidays. A “Business Day” is a day that is not
a Legal Holiday. A “Legal Holiday” is a Saturday, a Sunday, a federally-recognized holiday or a day
on which banking institutions are not required to be open in the State of New York. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.




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          SECTION 14.9.   Governing Law. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.




          SECTION 14.10.   No Adverse Interpretation of Other Agreements. This Indenture may
not be used to interpret another indenture, loan, security or debt agreement of the Company or any
Subsidiary thereof. No such indenture, loan, security or debt agreement may be used to interpret
this Indenture.




          SECTION 14.11.   No Recourse Against Others. No recourse for the payment of the
principal of or premium, if any, or interest on any of the Notes, 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 in this Indenture or in any supplemental indenture or Foreign
Subsidiary Guarantee, or in any of the Notes or the Guarantees, or because of the creation of any
Indebtedness represented thereby, shall be had against any stockholder, officer, director, partner,
affiliate, beneficiary or employee, as such, past, present or future, of the Company or any
Guarantor, or of any successor corporation thereof, or against the property or assets of any such
stockholder, officer, employee, partner, affiliate, beneficiary or director, either directly or
through the Company or any Guarantor, or any successor corporation thereof, 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 this Indenture, any supplemental indenture, any
Foreign Subsidiary Guarantee, the Notes and the Guarantees are solely obligations of the Company
and the Guarantors, as the case may be, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, any stockholder, officer, employee, partner, affiliate,
beneficiary or director, as such, of the Company or any Guarantor, or any successor corporation
thereof, because of the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture, any supplemental indenture,
any Foreign Subsidiary Guarantee, the Notes or the Guarantees or implied therefrom, and that any
and all such personal liability of, and any and all claims against every stockholder, officer,
employee, partner, affiliate, beneficiary and director, as such, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture any
supplemental indenture, any Foreign Subsidiary Guarantee and the issuance of the Notes. Such
waiver may not be effective to waive liabilities under federal securities laws and it is the view
of the SEC that such waiver is against public policy. It is understood that this limitation on
recourse is made expressly for the benefit of any such stockholder, employee, officer, partner,
affiliate, beneficiary or director and may be enforced by any one or all of them.




          SECTION 14.12.   Successors. All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall bind their respective successors.




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          SECTION 14.13.   Multiple Counterparts. The parties may sign multiple counterparts of
this Indenture. Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.




          SECTION 14.14.   Table of Contents, Headings, etc. The table of contents,
cross-reference sheet 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 or provisions hereof.




          SECTION 14.15.   Separability. Each provision of this Indenture shall be considered
separable and if for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.




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



	 	 	 	 	 
	 	FEDERAL-MOGUL CORPORATION, as the 
Issuer

 	 
	 	By:  	/s/ David A. Bozynski
 	 
	 	 	Name:  	David A. Bozynski 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	On behalf of each entity named on the attached
Schedule 1

 	 
	 	By:  	/s/ David A. Bozynski
 	 
	 	 	Name:  	David A. Bozynski 	 
	 	 	As a duly authorized signatory 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, as the 
Trustee

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 




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