exv4w1






Exhibit 4.1




Execution Copy




 





VIASYSTEMS, INC.




AND EACH OF THE GUARANTORS PARTY HERETO



12.00% SENIOR SECURED NOTES DUE 2015




 






INDENTURE




Dated as of November 24, 2009




 






Wilmington Trust FSB




Trustee




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1. 

DEFINITIONS
	 
	 	 	 	 
	Section 1.01 Definitions

	 	 	1	 
	Section 1.02 Other Definitions

	 	 	28	 
	Section 1.03 Rules of Construction

	 	 	28	 
	 
	 	 	 	 
	ARTICLE 2. 

THE NOTES
	 
	 	 	 	 
	Section 2.01 Form and Dating

	 	 	29	 
	Section 2.02 Execution and Authentication

	 	 	30	 
	Section 2.03 Registrar and Paying Agent

	 	 	30	 
	Section 2.04 Paying Agent to Hold Money in Trust

	 	 	31	 
	Section 2.05 Holder Lists

	 	 	31	 
	Section 2.06 Transfer and Exchange

	 	 	31	 
	Section 2.07 Replacement Notes

	 	 	41	 
	Section 2.08 Outstanding Notes

	 	 	42	 
	Section 2.09 Treasury Notes

	 	 	42	 
	Section 2.10 Temporary Notes

	 	 	42	 
	Section 2.11 Cancellation

	 	 	42	 
	Section 2.12 Defaulted Interest

	 	 	43	 
	Section 2.13 CUSIP Numbers

	 	 	43	 
	 
	 	 	 	 
	ARTICLE 3. 

REDEMPTION AND PREPAYMENT
	 
	 	 	 	 
	Section 3.01 Notices to Trustee

	 	 	43	 
	Section 3.02 Selection of Notes to Be Redeemed or Purchased

	 	 	44	 
	Section 3.03 Notice of Redemption

	 	 	44	 
	Section 3.04 Effect of Notice of Redemption

	 	 	45	 
	Section 3.05 Deposit of Redemption or Purchase Price

	 	 	45	 
	Section 3.06 Notes Redeemed or Purchased in Part

	 	 	45	 
	Section 3.07 Optional Redemption

	 	 	45	 
	Section 3.08 Mandatory Redemption

	 	 	46	 
	Section 3.09 Offer to Purchase by Application of Excess Proceeds

	 	 	46	 
	 
	 	 	 	 
	ARTICLE 4. 

COVENANTS
	 
	 	 	 	 
	Section 4.01 Payment of Notes

	 	 	48	 
	Section 4.02 Maintenance of Office or Agency

	 	 	48	 
	Section 4.03 Reports

	 	 	49	 
	Section 4.04 Compliance Certificate

	 	 	50	 
	Section 4.05 Taxes

	 	 	50	 
	Section 4.06 Stay, Extension and Usury Laws

	 	 	51	 
	Section 4.07 Restricted Payments

	 	 	51	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

	 	 	55	 
	Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock

	 	 	57	 
	Section 4.10 Asset Sales

	 	 	61	 






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	 	 	 	Page	 
	 
	Section 4.11 Transactions with Affiliates

	 	 	63	 
	Section 4.12 Liens

	 	 	64	 
	Section 4.13 Business Activities

	 	 	64	 
	Section 4.14 Corporate Existence

	 	 	65	 
	Section 4.15 Offer to Repurchase Upon Change of Control

	 	 	65	 
	Section 4.16 Additional Note Guarantees

	 	 	66	 
	Section 4.17 Designation of Restricted and Unrestricted Subsidiaries

	 	 	67	 
	Section 4.18 Redemption of the Senior Subordinated Notes

	 	 	68	 
	Section 4.19 Additional Collateral

	 	 	68	 
	 
	 	 	 	 
	ARTICLE 5. 

SUCCESSORS
	 
	 	 	 	 
	Section 5.01 Merger, Consolidation or Sale of Assets

	 	 	68	 
	Section 5.02 Successor Corporation Substituted

	 	 	69	 
	 
	 	 	 	 
	ARTICLE 6. 

DEFAULTS AND REMEDIES
	 
	 	 	 	 
	Section 6.01 Events of Default

	 	 	70	 
	Section 6.02 Acceleration

	 	 	72	 
	Section 6.03 Other Remedies

	 	 	72	 
	Section 6.04 Waiver of Past Defaults

	 	 	72	 
	Section 6.05 Control by Majority

	 	 	73	 
	Section 6.06 Limitation on Suits

	 	 	73	 
	Section 6.07 Rights of Holders of Notes to Receive Payment

	 	 	73	 
	Section 6.08 Collection Suit by Trustee

	 	 	73	 
	Section 6.09 Trustee May File Proofs of Claim

	 	 	74	 
	Section 6.10 Priorities

	 	 	74	 
	Section 6.11 Undertaking for Costs

	 	 	74	 
	 
	 	 	 	 
	ARTICLE 7. 

TRUSTEE
	 
	 	 	 	 
	Section 7.01 Duties of Trustee

	 	 	75	 
	Section 7.02 Rights of Trustee

	 	 	76	 
	Section 7.03 Individual Rights of Trustee

	 	 	77	 
	Section 7.04 Trustee’s Disclaimer

	 	 	77	 
	Section 7.05 Notice of Defaults

	 	 	77	 
	Section 7.06 Compensation and Indemnity

	 	 	77	 
	Section 7.07 Replacement of Trustee

	 	 	78	 
	Section 7.08 Successor Trustee by Merger, etc.

	 	 	79	 
	Section 7.09 Eligibility; Disqualification

	 	 	79	 
	 
	 	 	 	 
	ARTICLE 8. 

LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 
	 	 	 	 
	Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance

	 	 	79	 
	Section 8.02 Legal Defeasance and Discharge

	 	 	79	 
	Section 8.03 Covenant Defeasance

	 	 	80	 
	Section 8.04 Conditions to Legal or Covenant Defeasance

	 	 	80	 
	Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions

	 	 	81	 
	Section 8.06 Repayment to Company

	 	 	82	 
	Section 8.07 Reinstatement

	 	 	82	 






ii









 






	 	 	 	Page	 
	ARTICLE 9. 

AMENDMENT, SUPPLEMENT AND WAIVER
	 
	Section 9.01 Without Consent of Holders of Notes

	 	 	83	 
	Section 9.02 With Consent of Holders of Notes

	 	 	84	 
	Section 9.03 Revocation and Effect of Consents

	 	 	85	 
	Section 9.04 Notation on or Exchange of Notes

	 	 	85	 
	Section 9.05 Trustee to Sign Amendments, etc.

	 	 	86	 
	 
	 	 	 	 
	ARTICLE 10. 

NOTE GUARANTEES
	 
	 	 	 	 
	Section 10.01 Guarantee

	 	 	86	 
	Section 10.02 Limitation on Guarantor Liability

	 	 	87	 
	Section 10.03 Execution and Delivery of Note Guarantee

	 	 	87	 
	Section 10.04 Guarantors May Consolidate, etc., on Certain Terms

	 	 	88	 
	Section 10.05 Releases

	 	 	88	 
	 
	 	 	 	 
	ARTICLE 11. 

SATISFACTION AND DISCHARGE
	 
	 	 	 	 
	Section 11.01 Satisfaction and Discharge

	 	 	89	 
	Section 11.02 Application of Trust Money

	 	 	90	 
	 
	 	 	 	 
	ARTICLE 12. 

COLLATERAL AND SECURITY
	 
	 	 	 	 
	Section 12.01 Security Interest

	 	 	90	 
	Section 12.02 Intercreditor Agreement

	 	 	91	 
	Section 12.03 Collateral Trust Agreement

	 	 	91	 
	Section 12.04 Equal and Ratable Sharing of Collateral by Holders of Shared Lien Debt

	 	 	91	 
	Section 12.05 Release of Liens in Respect of Notes

	 	 	92	 
	Section 12.06 Relative Rights

	 	 	92	 
	Section 12.07 Collateral Trustee

	 	 	93	 
	Section 12.08 Further Assurances; Insurance

	 	 	94	 
	 
	 	 	 	 
	ARTICLE 13. 

MISCELLANEOUS
	 
	 	 	 	 
	Section 13.01 Notices

	 	 	95	 
	Section 13.02 Certificate and Opinion as to Conditions Precedent

	 	 	96	 
	Section 13.03 Statements Required in Certificate or Opinion

	 	 	96	 
	Section 13.04 Rules by Trustee and Agents

	 	 	96	 
	Section 13.05 No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	96	 
	Section 13.06 Governing Law

	 	 	97	 
	Section 13.07 No Adverse Interpretation of Other Agreements

	 	 	97	 
	Section 13.08 Successors

	 	 	97	 
	Section 13.09 Severability

	 	 	97	 
	Section 13.10 Counterpart Originals

	 	 	97	 
	Section 13.11 Table of Contents, Headings, etc.

	 	 	97	 






EXHIBITS




	 	 	 
	Exhibit A1

	 	FORM OF NOTE
	Exhibit A2

	 	FORM OF REGULATION S TEMPORARY GLOBAL NOTE
	Exhibit B

	 	FORM OF CERTIFICATE OF TRANSFER






iii









 






	 	 	 
	Exhibit C

	 	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D

	 	FORM OF CERTIFICATE FOR ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E

	 	FORM OF NOTE GUARANTEE
	Exhibit F

	 	FORM OF SUPPLEMENTAL INDENTURE





iv











 





     INDENTURE dated as of November 24, 2009 among Viasystems, Inc., a Delaware corporation (the
“Company”), the Guarantors party hereto and Wilmington Trust FSB, as trustee (the “Trustee”).



     The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined below) of the 12.00% Senior Secured
Notes due 2015 (the “Notes”):



ARTICLE
1.

DEFINITIONS




Section 1.01 Definitions.




     “144A Global Note” means a Global Note substantially in the form of Exhibit A1 hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.



     “Acquired Debt” means, with respect to any specified Person:




          (1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and




          (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.



     “Act of Required Debtholders” means, as to any matter at any time, a direction in writing
delivered to the Collateral Trustee by or with the written consent of the holders of more than 50%
of the sum of:




          (1) the aggregate outstanding principal amount of Shared Lien Debt (including the face
amount of outstanding letters of credit whether or not then available or drawn); and




          (2) the aggregate unfunded commitments to extend credit which, when funded, would
constitute Shared Lien Debt;



provided, however, that after (1) the termination or expiration of all commitments to extend credit
that would constitute Shared Lien Debt, (2) the payment in full in cash of the principal of and
interest and premium (if any) on all Shared Lien Debt (other than any undrawn letters of credit),
(3) the discharge or cash collateralization (at the lower of (a) 105% of the aggregate undrawn
amount or (b) the percentage of the aggregate undrawn amount required for release of Liens under
the terms of the applicable Shared Lien Document) of all outstanding letters of credit constituting
Shared Lien Debt, and (4) the payment in full in cash of all other Shared Lien Obligations other
than any Shared Lien Obligations consisting of Hedging Obligations and Banking Product Obligations,
the term “Act of Required Debtholders” will mean the holders of more than 50% of the sum of the
aggregate “settlement amount” (or similar term) (as defined in the applicable Hedge Agreement
relating to Shared Lien Obligations consisting of a Hedging Obligation) or, with respect to any
such Hedge Agreement that has been terminated in accordance with its terms, the amount then due and
payable (including any termination payments then due) under such Hedge Agreement, under all Hedge
Agreements relating to Shared Lien Obligations consisting of Hedging Obligations; provided that the
“settlement amount” (or similar term) as of the last Business Day of the


1









 







month preceding any date of determination shall be calculated by the appropriate swap
counterparties and reported to the Collateral Trustee upon request; provided further, that any
Hedging Obligation with a “settlement amount” (or similar term) that is a negative number shall be
disregarded for purposes of all calculations required by the term “Act of Required Debtholders.”




     For purposes of this definition, (a) Shared Lien Debt registered in the name of, or
beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be
outstanding, and (b) votes will be determined in accordance with Section 7.2 of the Collateral
Trust Agreement.



     “Additional Notes” means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Section 2.02, Section 4.09 and Section 4.12 hereof, as part of the
same series as the Initial Notes.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.



     “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.



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




          (1) 1.0% of the principal amount of the Note; or




          (2) the excess of: (a) the present value at such Redemption Date of (i) the redemption
price of the Note at July 15, 2012, (such redemption price being set forth in the table
appearing in Section 3.07 hereof) plus (ii) all required interest payments due on the Note
through July 15, 2012, (excluding accrued but unpaid interest to the applicable Redemption
Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date
plus 50 basis points; over (b) the principal amount of the Note.



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.



     “Asset Sale” means:




          (1) the sale, lease, conveyance or other disposition of any assets or rights (whether
voluntarily, or in any involuntary transaction that generates Net Proceeds) by the Company
or any of the Company’s Restricted Subsidiaries; provided that the sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by Section 4.15 of this Indenture
and/or Section 5.01 of this Indenture and not by Section 4.10 of this Indenture; and




          (2) the issuance or sale of Equity Interests in any of the Company’s Restricted
Subsidiaries.




Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:



2









 






          (1) a sale or other disposition of assets for net proceeds that, when taken
collectively with the net proceeds of any other sales or dispositions under this clause (1)
that were consummated since the beginning of the calendar year in which the sale or
disposition is consummated, do not exceed $1.0 million;




          (2) a transfer of assets between or among the Company and its Restricted Subsidiaries;




          (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company;




          (4) the sale, lease, conveyance or other disposition of products, services or accounts
receivable in the ordinary course of business (whether or not for cash) and any sale or
other disposition of damaged, worn-out or obsolete assets in the ordinary course of business
(including the abandonment or other disposition of intellectual property that is, in the
reasonable judgment of the Company, no longer economically practicable to maintain or useful
in the conduct of the business of the Company and its Restricted Subsidiaries taken as a
whole);




          (5) licenses and sublicenses by the Company or any of its Restricted Subsidiaries of
software or intellectual property in the ordinary course of business;




          (6) any surrender or waiver of contract rights or settlement, release, recovery on or
surrender of contract, tort or other claims in the ordinary course of business;




          (7) the granting of Liens not prohibited by Section 4.12 of this Indenture;




          (8) the sale or other disposition of cash or Cash Equivalents;




          (9) a Permitted Investment or a Restricted Payment that does not violate Section 4.07
of this Indenture;




          (10) voluntary terminations of Hedging Obligations; and




          (11) any sale or other disposition of any of the Specified Assets.



     “Banking Product Obligations” means, with respect to the Company or any Guarantor, any
obligations of the Company or such Guarantor owed to any Person in respect of treasury management
services (including, without limitation, services in connection with operating, collections,
payroll, trust, or other depository or disbursement accounts, including automated clearinghouse,
e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft,
depositary, information reporting, lock-box and stop payment services), commercial credit card and
merchant card services, stored valued card services, other cash management services, or lock-box
leases and other banking products or services related to any of the foregoing.



     “Bankruptcy Code” means Title 11 of the United States Code.



     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “Person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “Person” will be deemed to
have beneficial ownership of all securities that such “Person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a



3









 







subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” have a
corresponding meaning.



     “Board of Directors” means:




          (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




          (2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;




          (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and




          (4) with respect to any other Person, the board or committee of such Person serving a
similar function.



     “Borrowing Base” means, as of any date, an amount equal to:




          (1) 85% of the face amount of all accounts receivable owned by the Company and its
Restricted Subsidiaries as of the end of the most recent month preceding such date for which
internal financial statements are available that were not more than 180 days past due; plus




          (2) the sum of 85% of the appraised value of equipment owned by the Company and its
Restricted Subsidiaries plus 65% of the appraised value of real property owned by the
Company and its Restricted Subsidiaries.



     “Business Day” means any day other than a Legal Holiday.



     “Calculation Date” has the meaning assigned to it in the definition of “Fixed Charge Coverage
Ratio” in this Section 1.01.



     “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be prepaid by the lessee without payment of a penalty.



     “Capital Stock” means:




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




          (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




          (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




          (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.



4









 





     “Cash Equivalents” means:



          (1) United States dollars;



          (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than one year from the date of acquisition;



          (3) certificates of deposit and eurodollar time deposits with maturities of six months
or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any domestic commercial bank having
capital and surplus in excess of $250.0 million and a Thomson Bank Watch Rating of “B” or
better;



          (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;



          (5) commercial paper having one of the two highest ratings obtainable from Moody’s
Investors Service, Inc. or Standard & Poor’s Rating Services and, in each case, maturing
within one year after the date of acquisition;



          (6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition;



          (7) currency other than United States dollars held from time to time in the ordinary
course of business;



          (8) securities issued or directly and fully guaranteed by a sovereign nation or any
agency thereof (provided that the full faith and credit of such sovereign nation is pledged
in support thereof) in which the Company and/or its Restricted Subsidiaries are conducting
business having maturities of not more than one year from the date of acquisition; and



          (9) investments of the type and maturity described in clauses (3) through (5) of this
definition of foreign obligors, which investments or obligors satisfy the requirements and
have ratings described in such clauses.



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



          (1) the direct or indirect 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 properties or assets of the Company and its Subsidiaries
taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act)
other than a Principal;



          (2) the adoption of a plan relating to the liquidation or dissolution of the Company;
or



          (3) the consummation of any transaction (including, without limitation, any merger or
consolidation), the result of which is that any “person” (as defined above), other than a
Principal, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the
Voting Stock of the Company, measured by voting power rather than number of shares.



5









 





     “Chinese Credit Facility” means that certain credit facility provided pursuant to a credit
facility agreement, dated as of August 17, 2009, between Guangzhou Termbray Electronics Technology
Limited Company, a company organized under the law of the People’s Republic of China, and China
Construction Bank Guangzhou Economic and Technological Development Zone Sub-Branch providing for up
to RMB 200.0 million of borrowings, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and, in each case, as amended,
restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to institutional
investors) in whole or in part from time to time.



     “Clearstream” means Clearstream Banking, S.A. and any successor thereto.



     “Collateral” shall have the meaning assigned to it in the applicable Security Documents, which
shall include all properties and assets (including, without limitation, Capital Stock), whether
real, personal or mixed, of the Company, the Guarantors and any other Person that pledges, or
grants a security interest in, any collateral as security for any Priority Lien Obligation, in each
case, now or hereafter existing or arising or in which the Company, any Guarantor or any such other
Person now has or hereafter acquires an interest and wherever the same may be located, and shall
exclude (1) the Excluded Assets (as defined in the applicable Security Documents) and (2) any
properties and assets in which the Collateral Trustee is required to release its Liens pursuant to
Section 3.2 of the Collateral Trust Agreement; provided that, if such Liens are required to be
released as a result of the sale, transfer or other disposition of any properties or assets of the
Company or any other Guarantor, such assets or properties will cease to be excluded from the
Collateral if the Company or any other Grantor thereafter acquires or reacquires such assets or
properties.



     “Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of the date of
this Indenture, among the Company, the Guarantors from time to time party thereto, the Trustee, the
other Shared Lien Representatives from time to time party thereto and the Collateral Trustee, as
amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from
time to time.



     “Collateral Trustee” means Wilmington Trust FSB, in its capacity as collateral trustee under
the Collateral Trust Agreement, together with its successors and permitted assigns in such
capacity.



     “Company” has the meaning assigned to it in the preamble to this Indenture.



     “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication:




          (1) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus




          (2) the Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that such Fixed Charges were deducted in computing such Consolidated Net
Income; plus




          (3) exchange or translation losses on foreign currencies to the extent such losses were
deducted in computing such Consolidated Net Income; plus




          (4) the deferred portion of any fees under the Monitoring and Oversight Agreement,
subject to deductions when actually paid in subsequent periods; plus



6









 






          (5) restructuring charges or write-offs recorded following the date of this Indenture
in an aggregate amount not to exceed $40.0 million; plus




          (6) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and other non-cash
charges or expenses (excluding any such non-cash charge or expense to the extent that it
represents an accrual of or reserve for cash charges or expenses in any future period or
amortization of a prepaid cash charge or expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash charges or expenses were deducted in computing such
Consolidated Net Income; minus




          (7) exchange or translation gains on foreign currencies to the extent such gains were
added in computing such Consolidated Net Income; minus




          (8) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business,



in each case, on a consolidated basis and determined in accordance with GAAP.



     Notwithstanding the foregoing, the income tax expense, depreciation expense and amortization
expense of a Restricted Subsidiary of the Company will be included in Consolidated Cash Flow only
to the extent (and in the same proportion) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income.



     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that:




          (1) the Net Income of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting will be included only to the extent of the
lesser of (a) dividends or distributions paid to the Company or any of its Restricted
Subsidiaries by the specified Person and (b) the Net Income of the specified Person (but in
no event less than zero);




          (2) the net loss of any Person that is not a Restricted Subsidiary or that is accounted
for by the equity method of accounting (other than an Unrestricted Subsidiary) will be
included only to the extent of the aggregate Investment of the Company or any of its
Restricted Subsidiaries in the specified Person;




          (3) the Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders
(other than restrictions in effect on the date of this Indenture with respect to a
Restricted Subsidiary of the Company and other than restrictions that are created or exist
in compliance with Section 4.08 of this Indenture);




          (4) the cumulative effect of a change in accounting principles will be excluded;



7









 






          (5) non-cash gains and losses attributable to movement in the mark-to-market valuation
of Hedging Obligations pursuant to Accounting Standards Codification Topic 815 will be
excluded;




          (6) charges relating to the write-off of acquired in-process research and development
expenses and other intangibles in connection with the application of the purchase method of
accounting to the net assets of a Person acquired by the Company and its Restricted
Subsidiaries and charges relating to write-off of intangible assets will be excluded;




          (7) any non-cash expenses attributable to grants or exercises of employee stock options
will be excluded; and




          (8) notwithstanding clause (1) above, the Net Income of any Unrestricted Subsidiary
will be excluded, whether or not distributed to the specified Person or one of its
Subsidiaries.



     “Consolidated Shared Lien Debt Ratio” means, as of any date of determination, the ratio of (1)
the aggregate principal amount of Shared Lien Debt (including the Notes and the Note Guarantees) of
the Company and its Subsidiaries outstanding as of such date to (2) the Consolidated Cash Flow of
the Company for the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of determination, with such adjustments as
are consistent with the adjustment provisions set forth in the definition of “Fixed Charge Coverage
Ratio” in this Section 1.01.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 13.01 hereof or such other address as to which the Trustee may give notice to the Company.



     “Credit Facilities” means, one or more debt facilities or other financing arrangements
(including, without limitation, commercial paper facilities or indentures) providing for revolving
credit loans, term loans, letters of credit or other long-term indebtedness, including any notes,
mortgages, guarantees, collateral documents, instruments and agreements executed in connection
therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or commercial paper facilities that
replace, refund or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that
increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided
that such increase in borrowings is permitted under Sections 4.09 and 4.12 hereof) or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or
any other agent, lender or group of lenders.



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



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



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A1 hereto
except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and
any and




8












 




all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.




     “Designated Noncash Consideration” means any non-cash consideration received by the Company or
any of its Restricted Subsidiaries in connection with an Asset Sale that is designated as
Designated Noncash Consideration pursuant to an Officers’ Certificate delivered to the Trustee,
which Officers’ Certificate shall set forth the Fair Market Value of such Designated Noncash
Consideration and the basis for determining such Fair Market Value.



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of the Capital Stock have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a change of control
or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified
Stock deemed to be outstanding at any time for the purposes of this Indenture will be the maximum
amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the
maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock,
exclusive of accrued dividends.



     “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States, any state of the United States or the District of Columbia or that
guarantees or otherwise provides direct credit support for any Indebtedness of the Company or any
other Domestic Subsidiary of the Company.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Equity Offering” means an offer and sale for cash by the Company, Parent or any direct or
indirect parent company of the Company of its Equity Interests.



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



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



     “Existing Indebtedness” means the Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the Chinese Credit Facility and the Senior Subordinated Notes) in existence on
the date of this Indenture, until such amounts are repaid.



     “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by the Board of Directors of the Company (unless otherwise provided in this Indenture).



     “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs,



9









 




assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for which the calculation
of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage
Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee,
repayment, repurchase, redemption, defeasance or other discharge of Indebtedness (other than the
repayment, repurchase, redemption, defeasance or other discharge of Indebtedness under a revolving
credit or similar arrangement unless the revolving credit indebtedness has been permanently repaid
and has not been replaced), or such issuance, repurchase or redemption of preferred stock, and the
use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable
four-quarter reference period.




     In addition, for purposes of calculating the Fixed Charge Coverage Ratio:




     (1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its
Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date, or that are to be made on
the Calculation Date, will be given pro forma effect (as determined in good faith by a
responsible financial or accounting officer of the Company, and including any operating
expense reductions for such period resulting from such acquisition that have been realized
or for which all of the material steps necessary for realization have been taken or are
reasonably expected to be taken within 180 days after the date of such acquisition) as if
they had occurred on the first day of the four-quarter reference period;




     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded;




     (3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;




     (4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four-quarter period;




     (5) any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such four-quarter period;




     (6) if any Indebtedness is incurred under a revolving credit facility (or similar
arrangement or under any predecessor revolving credit or similar arrangement) only that
portion of the Indebtedness that constitutes the projected weighted average annual balance
of the Indebtedness (as determined in good faith by senior management of the Company and
assuming a constant level of sales) will be deemed outstanding; and




     (7) if any Indebtedness bears a floating rate of interest, the interest expense on such
Indebtedness will be calculated as if the rate in effect on the Calculation Date had been
the applicable rate for the entire period (taking into account any Hedging Obligation
applicable to



10









 






such Indebtedness if such Hedging Obligation has a remaining term as of the Calculation
Date in excess of 12 months).



     “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging Obligations in respect of
interest rates; plus




     (2) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus




     (3) any interest on Indebtedness of a third party (which third party is not an
Affiliate of such Person) that is guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries if the interest is actually paid by such Person or one of its Restricted
Subsidiaries; plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company,
times (b) a fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory rate of such Person,
expressed as a decimal, in each case, determined on a consolidated basis in accordance with
GAAP; minus




     (5) to the extent included in consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, the amortization of capitalized debt issuance costs
and debt discount solely to the extent relating to the issuance and sale of Indebtedness
together with any equity security as part of an investment unit,


in each case, on a consolidated basis in accordance with GAAP.




     “Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.



     “Foreign Subsidiary Debt” means any Indebtedness of Foreign Subsidiaries, including under the
Chinese Credit Facility.



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



     “Global Note Legend” means the legend set forth in Section 2.06(f)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.



11









 





     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depository or its nominee, substantially in the form of Exhibit A1 hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4) or 2.06(d)(2) hereof.



     “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).



     “Guarantors” means:




     (1) each direct or indirect Domestic Subsidiary of the Company on the date of this
Indenture, other than each Immaterial Subsidiary; and




     (2) any other Restricted Subsidiary of the Company that executes a Note Guarantee in
accordance with the provisions of this Indenture;


and their respective successors and assigns until released from their obligations under their Note
Guarantees and this Indenture in accordance with the terms of this Indenture.




     “Hedge Agreement” means any agreement evidencing Hedging Obligations.



     “Hedging Obligations” means, with respect to any specified Person, the Obligations of such
Person under:




     (1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;




     (2) other agreements or arrangements designed to manage interest rates or interest rate
risk; and




     (3) other agreements or arrangements designed to protect such Person against
fluctuations in currency exchange rates or commodity prices.



     “Holder” means a Person in whose name a Note is registered.



     “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary whose Total Assets,
as of that date, are less than $100,000 and whose total revenues for the most recent twelve month
period do not exceed $100,000; provided that a Restricted Subsidiary will not be considered to be
an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct
credit support for any Indebtedness of the Company or any Restricted Subsidiary of the Company;
provided further that each of Viasystems Milwaukee Inc., a Wisconsin corporation, and Wirekraft
Industries, LLC, a Delaware limited liability company, will be considered to be an Immaterial
Subsidiary (notwithstanding that it guarantees the Company’s Obligations under the Senior
Subordinated Notes) until such time that it: (i) has Total



12









 




Assets equal to or greater than $100,000, (ii) has total revenues for the most recent twelve
month period equal to or greater than $100,000 or (iii) directly or indirectly guarantees or
otherwise provides direct credit support for any Indebtedness of the Company or any Restricted
Subsidiary of the Company (other than the Senior Subordinated Notes, but including, for the
avoidance of doubt, any Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease
or discharge the Senior Subordinated Notes).




     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent:




     (1) in respect of borrowed money;




     (2) evidenced by bonds (other than performance bonds), notes, debentures or similar
instruments (or reimbursement agreements in respect thereof);




     (3) in respect of banker’s acceptances;




     (4) representing Capital Lease Obligations;




     (5) in respect of letters of credit or other similar instruments (or reimbursement
agreements in respect thereof) (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (1), (2) and (4)) entered
into in the ordinary course of business of such Person to the extent that such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third business day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit);




     (6) representing the balance deferred and unpaid of the purchase price of any property
or services due more than six months after such property is acquired or such services are
completed; or




     (7) representing any Hedging Obligations,


if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving
effect to the effects of Accounting Standards Codification Topic 815 and related interpretations to
the extent such effects would otherwise increase or decrease an amount of Indebtedness for any
purpose under this Indenture as a result of accounting for any embedded derivatives created by the
terms of such Indebtedness.




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



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



     “Initial Notes” means the first $220,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



13









 





     “Initial Purchasers” means Goldman, Sachs & Co. and Wells Fargo Securities, LLC.



     “Insolvency or Liquidation Proceeding” means:




     (1) any case commenced by or against the Company or any Guarantor under the Bankruptcy
Code, or any similar federal or state law for the relief of debtors, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or
liabilities of the Company or any Guarantor, any receivership or assignment for the benefit
of creditors relating to the Company or any Guarantor or any similar case or proceeding
relative to the Company or any Guarantor or its creditors, as such, in each case whether or
not voluntary;




     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Company or any Guarantor, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency, unless otherwise permitted by this
Indenture and the Security Documents;




     (3) any proceeding seeking the appointment of a trustee, receiver, liquidator,
custodian or other insolvency official with respect to the Company or any Guarantor or any
of their assets;




     (4) any other proceeding of any type or nature in which substantially all claims of
creditors of the Company or any Guarantor are determined and any payment or distribution is
or may be made on account of such claims; or




     (5) any analogous procedure or step in any jurisdiction.



     “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act, who are not also QIBs.



     “Intercreditor Agreement” means an intercreditor agreement to be entered into by the
Collateral Trustee in connection with Priority Lien Debt, if any, in substantially the form
attached as Exhibit C to the Collateral Trust Agreement, as amended, supplemented, modified,
restated, renewed or replaced (whether upon or after termination or otherwise), in whole or in part
from time to time, in accordance with the terms of Section 7.1 of the Collateral Trust Agreement
and such intercreditor agreement.



     “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances (excluding advances to customers in the ordinary course of business) or
capital contributions (excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or
any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company will be deemed to have made an
Investment on the date of any such sale or disposition equal to the Fair Market Value of the
Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined
as provided in the final paragraph of Section 4.07 of this Indenture. The acquisition by the
Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person
will be deemed to be an Investment by the Company or such Subsidiary in such third Person in an
amount equal to the Fair Market Value of the Investments held by the acquired Person in such third
Person in an amount determined as provided in the final paragraph of Section 4.07 of this
Indenture. For purposes of Section 4.07 of this Indenture: (1) “Investment” will include the
portion



14









 




(proportionate to the Company’s Equity Interest in a Restricted Subsidiary to be designated as
an Unrestricted Subsidiary) of the Fair Market Value of the net assets of the Restricted Subsidiary
of the Company at the time that the Restricted Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a re-designation of the Unrestricted Subsidiary as a Restricted
Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an
Unrestricted Subsidiary in an amount (if positive) equal to (a) the Company’s “Investment” in the
Subsidiary at the time of re-designation less (b) the portion (proportionate to the Company’s
Equity Interest in the Subsidiary) of the Fair Market Value of the net assets of the Subsidiary at
the time that the Subsidiary is so re-designated a Restricted Subsidiary; and (2) any property
transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the
time of transfer. Except as otherwise provided in this Indenture, the amount of an Investment will
be determined at the time the Investment is made and without giving effect to subsequent changes in
value.




     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. 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 on such
payment for the intervening period.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
(but not a consignment in the ordinary course of business), any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.



     “Lien Sharing and Priority Confirmation” means, as to any Series of Shared Lien Debt, the
written agreement of the holders of such Series of Shared Lien Debt for the benefit of all holders
of Shared Lien Debt and each future Shared Lien Representative:




     (1) that all Shared Lien Obligations will be and are secured equally and ratably by all
Shared Liens at any time granted by the Company or any Guarantor to secure any Obligations
in respect of such Series of Shared Lien Debt, whether or not upon property otherwise
constituting Collateral, and that all such Shared Liens will be enforceable by the
Collateral Trustee for the benefit of all holders of Shared Lien Obligations equally and
ratably;




     (2) that the holders of Obligations in respect of such Series of Shared Lien Debt are
bound by the provisions of the Collateral Trust Agreement, including the provisions relating
to the ranking of Shared Liens and the order of application of proceeds from enforcement of
Shared Liens; and




     (3) consenting to the terms of the Collateral Trust Agreement and the Intercreditor
Agreement and the Collateral Trustee’s performance of, and directing the Collateral Trustee
to perform, its obligations under the Collateral Trust Agreement and the Intercreditor
Agreement.



     “Merger” means the merger of Maple Acquisition Corp., a subsidiary of Parent with and into
Merix pursuant to that certain Agreement and Plan of Merger, dated as of October 6, 2009, among
Parent, Maple Acquisition Corp. and Merix and the substantially concurrent contribution by Parent
of all of the issued and outstanding capital stock of Merix to the Company.



     “Merix” means Merix Corporation, an Oregon corporation.



15









 





     “Monitoring and Oversight Agreement” means the Monitoring and Oversight Agreement, effective
as of January 31, 2003, between the Company and Hicks, Muse & Co. Partners, L.P., as in effect on
the date of this Indenture.



     “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however:




     (1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any Asset Sale; or (b) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and




     (2) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.



     “Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation,
any cash or Cash Equivalents received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of (1) the direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result of the Asset Sale, (2) taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (3) amounts required to be applied to the
repayment of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on
the asset or assets that were the subject of such Asset Sale, (4) any reserve for adjustment or
indemnification obligations in respect of the sale price of such asset or assets established in
accordance with GAAP, (5) all distributions and other payments required to be made to any Person
owning a beneficial interest in assets subject to sale or minority interest holders in Subsidiaries
or joint ventures as a result of such Asset Sale, (6) any reserve, established in accordance with
GAAP, against any liabilities associated with the assets disposed of in such Asset Sale and
retained by the Company or any Restricted Subsidiary of the Company after such Asset Sale, and (7)
any portion of the purchase price from an Asset Sale placed in escrow (whether as a reserve for
adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Sale or
otherwise in connection with such Asset Sale); provided, however, that upon the termination of such
escrow, Net Proceeds will be increased by any portion of funds therein released to the Company or
any Restricted Subsidiary.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any Restricted Subsidiary (a) provides any
guarantee or credit support of any kind (including any undertaking, guarantee, indemnity,
agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly
liable as a Guarantor or otherwise; and




     (2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to
its Stated Maturity.



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



16









 





     “Note Documents” means this Indenture, the Notes, the Note Guarantees, the Security Documents
and each of the other agreements, documents and instruments providing for or evidencing any note
Obligation, any other document or instrument executed or delivered at any time in connection with
any Obligation in respect of the Notes, including pursuant to the Shared Lien Documents, to the
extent such are effective at the relevant time, as each may be amended, restated, supplemented,
modified, renewed or extended from time to time.



     “Note Guarantee” means the Guarantee by each Guarantor of the Company’s Obligations under this
Indenture and the Notes, executed pursuant to the provisions of this Indenture.



     “Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes
and the Additional Notes shall be treated as a single class for all purposes under this Indenture,
and unless the context otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.



     “Obligations” means any principal (including reimbursement obligations with respect to letters
of credit whether or not drawn), interest (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable
post-default rate, specified in the documentation governing any Indebtedness even if such interest
is not enforceable, allowable or allowed as a claim in such proceeding), penalties, premium (if
any), fees, indemnifications, reimbursements, expenses, damages and other liabilities or
obligations payable or otherwise owed or to be performed under the documentation governing any
Indebtedness.



     “Offering Circular” means the offering circular, dated November 10, 2009, relating to the
offering of the Initial Notes.



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, Assistant Secretary or any Vice-President
of such Person.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 13.03 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 13.03 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Parent” means Viasystems Group, Inc., the direct parent company of the Company.



     “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).



     “Permitted Business” means any business in which the Company or any of its Restricted
Subsidiaries is engaged on the date of this Indenture and any business that is reasonably related
or ancillary thereto.



     “Permitted Investments” means:



17









 






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




     (2) any Investment in Cash Equivalents;




     (3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:




          (a) such Person becomes a Restricted Subsidiary of the Company; or




          (b) 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
Restricted Subsidiary of the Company;




     (4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 of this Indenture;




     (5) any acquisition of assets or Capital Stock solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;




     (6) any Investments received in compromise or resolution of (a) obligations of trade
creditors or customers; (b) debts that were incurred in the ordinary course of business and
owing to the Company or any of its Restricted Subsidiaries, including pursuant to any plan
of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (c) litigation, arbitration or other disputes with Persons who are
not Affiliates;




     (7) Investments represented by Hedging Obligations not for speculative purposes and in
the ordinary course of business;




     (8) loans or advances to employees made in the ordinary course of business of the
Company or the Restricted Subsidiary of the Company in an aggregate principal amount not to
exceed $5.0 million at any one time outstanding;




     (9) prepayments and other credits to suppliers made in the ordinary course of business
consistent with the past practices of the Company and its Restricted Subsidiaries;




     (10) Investments in connection with pledges, deposits, payments or performance bonds
made or given in the ordinary course of business in connection with or to secure statutory,
regulatory or similar obligations, including obligations under health, safety or
environmental obligations;




     (11) repurchases of the Notes and the Senior Subordinated Notes;




     (12) any Guarantee of Indebtedness permitted to be incurred by Section 4.09 hereof
other than a Guarantee of Indebtedness of an Affiliate of the Company that is not a
Restricted Subsidiary of the Company;




     (13) any Investment existing on, or made pursuant to binding commitments existing on,
the date of this Indenture and any Investment consisting of an extension, modification or
renewal of any Investment existing on, or made pursuant to a binding commitment existing on,
the date of this Indenture; provided that the amount of any such Investment may be increased
(a) as required



18









 






by the terms of such Investment as in existence on the date of this Indenture or (b) as
otherwise permitted under this Indenture;




     (14) Investments acquired after the date of this Indenture as a result of the
acquisition by the Company or any Restricted Subsidiary of the Company of another Person,
including by way of a merger, amalgamation or consolidation with or into the Company or any
of its Restricted Subsidiaries in a transaction that is not prohibited by Section 5.01 of
this Indenture after the date of this Indenture to the extent that such Investments were not
made in contemplation of such acquisition, merger, amalgamation or consolidation and were in
existence on the date of such acquisition, merger, amalgamation or consolidation;




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




     (16) other Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this clause (16)
that are at the time outstanding not to exceed $50.0 million.




“Permitted Liens” means the following types of Liens:




     (1) Liens on Collateral securing (a) Priority Lien Debt in an aggregate principal
amount (as of the date of incurrence of any Priority Lien Debt and after giving pro forma
effect to the application of the net proceeds therefrom and with letters of credit issued
under the Priority Lien Documents being deemed to have a principal amount equal to the face
amount thereof), not exceeding the Priority Lien Debt Cap, and (b) all other Priority Lien
Obligations;




     (2) Liens on Collateral held by the Collateral Trustee securing (a) the Initial Notes
and the Note Guarantees in respect of the Initial Notes to be issued on the date of this
Indenture, (b) any additional Shared Lien Debt (including any Additional Notes); provided
that, as of the date of incurrence of any additional Shared Lien Debt (including any
Additional Notes), the aggregate principal amount of all such additional Shared Lien Debt,
together with the aggregate principal amount of all other Shared Lien Debt then outstanding
(including the Initial Notes and the Note Guarantees in respect of the Initial Notes to be
issued on the date of this Indenture), will not cause the Consolidated Shared Lien Debt
Ratio to exceed 3.50 to 1.00, calculated after giving pro forma effect to such incurrence
and the application of the net proceeds therefrom, and (c) all other Shared Lien
Obligations;




     (3) Liens in favor of the Company or the Guarantors;




     (4) Liens to secure the performance of statutory obligations, insurance, surety or
appeal bonds, workers compensation obligations, performance bonds or other obligations of a
like nature incurred in the ordinary course of business (including Liens to secure letters
of credit issued to assure payment of such obligations);




     (5) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (4) of Section 4.09(b) of this Indenture covering only the assets acquired with or
financed by such Indebtedness;



19









 






     (6) Liens existing on the date of this Indenture, other than liens to secure the
Initial Notes or the Note Guarantees in respect of the Initial Notes issued on the date of
this Indenture;




     (7) Liens on property of a Person existing at the time such Person becomes a Restricted
Subsidiary of the Company or is merged with or into or consolidated with any Restricted
Subsidiary of the Company; provided that such Liens were in existence prior to the
contemplation of such Person becoming a Restricted Subsidiary of the Company or such merger
or consolidation and do not extend to any assets other than those of the Person that becomes
a Restricted Subsidiary of the Company or is merged with or into or consolidated with any
Restricted Subsidiary of the Company;




     (8) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Indenture (the proceeds of which are applied to refinance, renew, refund,
refinance, replace, defease or discharge secured Indebtedness (other than Priority Lien Debt
or Shared Lien Debt)); provided that (a) the new Lien shall be limited to all or part of the
same property and assets that secured the original Lien, (b) the new Lien shall be
subordinated to the Liens on such property and assets securing any Shared Lien Debt, and (c)
the Indebtedness secured by the new Lien is not increased to any amount greater than the sum
of (i) the outstanding principal amount of the Indebtedness renewed, refunded, refinanced,
replaced, defeased or discharged with such Permitted Refinancing Indebtedness, and (ii) an
amount necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge;




     (9) Liens incurred by the Company or any Subsidiary of the Company with respect to
obligations that do not exceed $10.0 million at any one time outstanding;




     (10) Liens on insurance policies and proceeds thereof, or other deposits, to secure
insurance premium financings;




     (11) Liens on cash, Cash Equivalents or other property arising in connection with the
defeasance, discharge or redemption of Indebtedness;




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




     (13) 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 concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;




     (14) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’
Liens, in each case, incurred in the ordinary course of business;




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



20









 






     (16) Liens on Capital Stock (that does not constitute Collateral) issued by, or any
property or assets of, any Foreign Subsidiary securing Indebtedness incurred by such Foreign
Subsidiary or another Foreign Subsidiary that directly or indirectly owns such Capital
Stock; and




     (17) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or a Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to such acquisition and not incurred in contemplation of such
acquisition.




“Permitted Payments to Parent” means, without duplication as to amounts:




     (1) payments to Parent or any direct or indirect parent company of the Company to
permit such Person to pay reasonable accounting, legal and administrative expenses of such
Person when due, in an aggregate amount not to exceed $2.5 million per annum;




     (2) amounts payable pursuant to the Monitoring and Oversight Agreement as in effect on
the date of this Indenture;




     (3) fees and expenses of Parent or any direct or indirect parent company of the Company
other than to Affiliates of the Company related to any equity or debt offering of Parent or
any direct or indirect parent company of the Company (whether or not successful);




     (4) cash payments in lieu of issuing fractional shares in connection with the exercise
of warrants, options or other securities convertible into or exchangeable for Equity
Interests of the Issuer or any direct or indirect parent; and




     (5) for so long as the Company is a member of a group filing a consolidated, combined
or unitary tax return with Parent or any direct or indirect parent company of the Company,
payments to such Person in respect of an allocable portion of the tax liabilities of such
group that is attributable to the Company and its Subsidiaries (“Tax Payments”). The Tax
Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any
penalties and interest) that the Company would owe if the Company were filing a separate tax
return (or a separate consolidated, combined or unitary return with its Subsidiaries that
are members of the consolidated, combined or unitary group), taking into account any
carryovers and carrybacks of tax attributes (such as net operating losses) of the Company
and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax
that such Person actually owes to the appropriate taxing authority. Any Tax Payments
received from the Company shall be paid over to the appropriate taxing authority within 30
days of such Person’s receipt of such Tax Payments or refunded to the Company.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);



21









 






     (2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity that is (a) equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged or (b) more than 90 days after the
final maturity date of the Notes;




     (3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable
to the Holders of Notes as those contained in the documentation governing the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged; and




     (4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary
of the Company that was the obligor on the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged.



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



     “Principals” means Hicks, Muse, Tate & Furst Incorporated, Hanley Partners, Inc., or any of
their Affiliates, officers or directors.



     “Priority Lien Collateral Agent” means the trustee, agent or representative of the holders of
Priority Lien Debt who is appointed by such holders (or an agent or other representative on their
behalf) as a representative of such holders (for purposes related to the administration of the
security documents purporting to secure such Series of Priority Lien Debt).



     “Priority Lien Debt” means Indebtedness (including letters of credit and reimbursement
obligations with respect thereto, but excluding any Hedging Obligations) of the Company or any
Guarantor secured by Liens on Collateral that are made senior to the Liens on such Collateral
granted in favor of the holders of Shared Lien Debt pursuant to the Intercreditor Agreement;
provided, in the case of any such Indebtedness that:




     (1) on or before the date on which such Indebtedness is incurred by the Company or such
Guarantor, as applicable, such Indebtedness is designated by the Company, in an Officers’
Certificate delivered to the Collateral Trustee, as “Priority Lien Debt” for purposes of the
Shared Lien Documents; provided, that no Indebtedness may be designated as, or may otherwise
constitute, both Priority Lien Debt and Shared Lien Debt; and




     (2) the Priority Lien Collateral Agent, the Collateral Trustee, the Company and each
Guarantor have duly executed and delivered the Intercreditor Agreement (or, if another
Series of Priority Lien Debt is then outstanding, a joinder to the Intercreditor Agreement).



     “Priority Lien Debt Cap” means, as of any date of determination, the greater of (1) $75.0
million or (2) the amount of the Borrowing Base as of such date, after giving pro forma effect to
the incurrence of any Priority Lien Debt and the application of the net proceeds therefrom.



     “Priority Lien Documents” means, collectively, any credit agreement, indenture or other
agreement governing a Series of Priority Lien Debt, any document granting a security interest in
favor of such Priority Lien Debt and any intercreditor or joinder agreement among holders of
Priority Lien Obligations.



22









 





     “Priority Lien Obligations ” means Priority Lien Debt incurred or arising under the Priority
Lien Documents and all related Obligations (excluding any Obligations that would constitute
Priority Lien Debt), together with (1) Banking Product Obligations of the Company or any Guarantor
relating to services provided to the Company or any Guarantor that are secured, or intended to be
secured, on a pari passu basis with Priority Lien Debt pursuant to a Lien granted in favor of the
Priority Lien Collateral Agent under the Priority Lien Documents, and (2) Hedging Obligations (and
any Guarantees of such Hedging Obligations) that by the terms of the Priority Lien Documents are
secured, or intended to be secured, on a pari passu basis with Priority Lien Debt.



     “Private Placement Legend” means the legend set forth in Section 2.06(f)(1) to be placed on
all Notes issued under this Indenture except where otherwise permitted by the provisions of this
Indenture.



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



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



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



     “Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A1
hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration
of the Restricted Period.



     “Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A2
hereto deposited with or on behalf of and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the Notes initially sold in
reliance on Rule 903 of Regulation S.



     “Responsible Officer” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.



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



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



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



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



     “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.



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



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



23









 





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



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



     “SEC” means the Securities and Exchange Commission.



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



     “Security Documents” means the Collateral Trust Agreement, each Lien Sharing and Priority
Confirmation, and all security agreements, pledge agreements, collateral assignments, collateral
agency agreements, mortgages, debentures, control agreements, deeds of trust or other grants or
transfers for security executed and delivered by the Company or any Guarantor creating (or
purporting to create) a Lien upon Collateral in favor of the Collateral Trustee, in each case, as
amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in
accordance with Section 7.1 of the Collateral Trust Agreement.



     “Senior Subordinated Note Indenture” means the indenture, dated as December 17, 2003, by and
among the Company, the guarantors party thereto, and the Bank of New York, as trustee, pursuant to
which Viasystem issued the Senior Subordinated Notes.



     “Senior Subordinated Notes” means the $200,000,000 in aggregate principal amount of the
Company’s outstanding 10.50% Senior Subordinated Notes due 2011 issued pursuant to the Senior
Subordinated Note Indenture.



     “Series of Priority Lien Debt” means, severally, any Credit Facility and any other
Indebtedness that constitutes Priority Lien Obligations for which a single transfer register is
maintained.



     “Series of Shared Lien Debt” means, severally, the Notes and any Additional Notes, any Credit
Facility and other Indebtedness that constitutes Shared Lien Debt for which a single transfer
register is maintained.



     “Shared Lien” means a Lien granted by a Security Document to the Collateral Trustee, at any
time, upon any property of the Company or any Guarantor to secure Shared Lien Obligations.



     “Shared Lien Debt” means:




     (1) the Notes (including any Additional Notes) issued by the Company under this
Indenture; and




     (2) other Indebtedness (including letters of credit and reimbursement obligations with
respect thereto, but excluding any Hedging Obligations) of the Company that is secured
equally and ratably with the Notes by a Shared Lien that was permitted to be incurred and so
secured under each applicable Shared Lien Document; provided, in the case of any other
Indebtedness referred to in this clause (2), that:




     (A) on or before the date on which such other Indebtedness is incurred by the
Company, such other Indebtedness is designated by the Company, in an Officers’
Certificate delivered to each Shared Lien Representative and the Collateral
Trustee, as “Shared Lien Debt” for the purposes of the Shared Lien Documents and
in which the Company certifies that such Shared Lien Debt was permitted to be
incurred and so secured under this Indenture and each other applicable Shared Lien
Document;



24









 






provided that no Indebtedness may be designated as, or may otherwise
constitute, both Priority Lien Debt and Shared Lien Debt;




     (B) the Company has delivered to the Collateral Trustee a joinder to the
Collateral Trust Agreement that includes a Lien Sharing and Priority Confirmation,
executed by the representative of the holders of such other Indebtedness; and




     (C) all requirements set forth in the Collateral Trust Agreement as to the
confirmation, grant or perfection of the Collateral Trustee’s Lien to secure such
other Indebtedness or Obligations in respect thereof are satisfied (and the
satisfaction of such requirements and the other provisions of this clause (C) will
be conclusively established if the Company delivers to the Collateral Trustee an
Officers’ Certificate stating that such requirements and other provisions have
been satisfied and that such other Indebtedness is “Shared Lien Debt”).



     “Shared Lien Documents” means, collectively, the Note Documents and any additional indenture,
credit agreement or other similar agreement governing each Series of Shared Lien Debt and any
document granting a Lien in favor of such Shared Lien Debt, including, without limitation, the
Security Documents, to the extent such are effective at the relevant time, as each may be amended,
restated, supplemented, modified, renewed or extended from time to time.



     “Shared Lien Obligations” means Shared Lien Debt incurred or arising under the Shared Lien
Documents and all related Obligations (excluding any Obligations that would constitute Shared Lien
Debt), together with (1) Banking Product Obligations of the Company or any Guarantor relating to
services provided to the Company or any Guarantor that are secured, or intended to be secured, by
the Shared Lien Documents if the provider of such Banking Product Obligations has agreed to be
bound by the terms of the Collateral Trust Agreement or such provider’s interest in the Collateral
is subject to the terms of the Collateral Trust Agreement and if such Banking Product Obligations
are designated by the Company as “Shared Lien Obligations” for the purposes of the Shared Lien
Documents; and (2) Hedging Obligations (and any Guarantees of such Hedging Obligations) that are
secured, or intended to be secured, under the Shared Lien Documents if the provider of such Hedging
Obligations has agreed to be bound by the terms of the Collateral Trust Agreement or such
provider’s interest in the Collateral is subject to the terms of the Collateral Trust Agreement and
if such Hedging Obligations are designated by the Company as “Shared Lien Obligations” for the
purposes of the Shared Lien Documents; provided that no Banking Product Obligations and no Hedging
Obligations may be designated as, or may otherwise constitute, both Priority Lien Obligations and
Shared Lien Obligations.



     “Shared Lien Representative” means (1) the Trustee, in the case of the Notes, and (2) in the
case of any other Series of Shared Lien Debt, the trustee, agent or representative of the holders
of such Series of Shared Lien Debt who (a) maintains the transfer register for such Series of
Shared Lien Debt and is appointed as a representative of such Series of Shared Lien Debt (for
purposes related to the administration of the Security Documents) pursuant to this Indenture,
credit agreement or other agreement governing such Series of Shared Lien Debt, and (b) has become a
party to the Collateral Trust Agreement by executing a joinder in the form required under the
Collateral Trust Agreement.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1—02 of Regulation S—X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.



     “Specified Assets” means, collectively:




25











 






     (1) machinery and equipment at the Merix facilities located at (a) 1521 Poplar Lane,
Forest Grove, Oregon 97116 (b) 23365 NE Halsey Street, Wood Village, Oregon 97060 and (c)
355 Turtle Creek Court, San Jose, CA 95125 as currently existing on the date of this
Indenture;




     (2) Sublease Agreement, dated as of April 1, 2008, by and between Merix and XSunX, Inc.
as in effect on the date of this Indenture;




     (3) lots 1300 and 1400 (and only lots 1300 and 1400) of the property located at 1521
Poplar Street, Forest Grove, Oregon, 97116, as currently existing on the date of this
Indenture; and




     (4) the facility located at No. 2 Chun Yat Street, Tseung Kwan O Industrial Estate,
Tseung Kwan O, Kowloon, Hong Kong as currently existing on the date of this Indenture.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness as of the date of this Indenture, and will
not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and




     (2) any partnership or limited liability company of which more than 50% of the capital
accounts, distribution rights, total equity and voting interests or general and limited
partnership interests, as applicable, are owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or any combination
thereof).



     “Tax Payments” has the meaning assigned to it in the definition of “Permitted Payments to
Parent” in this Section 1.01.



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



     “Total Assets” of any Person as of any date means the total consolidated book value of all
assets of such Person and its Restricted Subsidiaries as of such date, determined on a consolidated
basis in accordance with GAAP, based upon the consolidated balance sheet of such Person as of the
end of the most recently ended fiscal quarter for which internal financial statements are
available. Total Assets of any group of Persons will be determined in the same manner.



     “Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption
Date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available
at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most nearly equal to the
period from the Redemption



26









 




Date to July 15, 2012; provided, however, that if the period from the Redemption Date to July
15, 2012, is less than one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.




     “Trustee” means the party named as such in the preamble to this Indenture until a successor
replaces it in accordance with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.



     “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in
any applicable jurisdiction.



     “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.



     “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.



     “Unrestricted Subsidiary” means:




     (1) any Subsidiary of the Company that at the time of determination shall have been
designated an Unrestricted Subsidiary by the Board of Directors in the manner provided in
Section 4.17 of this Indenture; and




     (2) any Subsidiary of an Unrestricted Subsidiary.


The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or
newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless (a) such Subsidiary
or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on
any property of, the Company or any Restricted Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated, (b) the Subsidiary to be so designated has Indebtedness
other than Non-Recourse Debt, (c) except as permitted by Section 4.11 of this Indenture, such
Subsidiary or any of its Subsidiaries is a party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company where the terms of any
such agreement, contract, arrangement or understanding are less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons who are not
Affiliates of the Company, (d) such Subsidiary or any of its Subsidiaries is a Person with respect
to which the Company or any of its Restricted Subsidiaries has any direct or indirect obligation
(i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of operating results,
or (e) such Subsidiary or any of its Subsidiaries has guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.




     “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.



     “Voting Stock” of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors of such Person.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:



27









 






     (1) the sum of the products obtained by multiplying (x) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Authentication Order”
	 	 	2.02	 
	“Change of Control Offer”
	 	 	4.15	 
	“Change of Control Payment”
	 	 	4.15	 
	“Change of Control Payment Date”
	 	 	4.15	 
	“Covenant Defeasance”
	 	 	8.03	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Permitted Debt”
	 	 	4.09	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Redemption Date”
	 	 	3.01	 
	“Registrar”
	 	 	2.03	 
	“Restricted Payments”
	 	 	4.07	 
	“Senior Subordinated Notes Redemption Date”
	 	 	4.18	 
	“Successor Company”
	 	 	5.01	 






Section 1.03 Rules of Construction.




     Unless the context otherwise requires:




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




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



28









 






     (6) provisions apply to successive events and transactions; and




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



ARTICLE 2.

THE NOTES




Section 2.01 Form and Dating.




     (a) General. The Notes and the Trustee’s certificate of authentication will be substantially
in the form of Exhibits A1 and A2 hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in
excess of $2,000.



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.



     (b) Global Notes. Notes issued in global form will be substantially in the form of Exhibits
A1 or A2 attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto). Notes issued in definitive form will be
substantially in the form of Exhibit A1 attached hereto (but without the Global Note Legend thereon
and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified therein and each
shall provide that it represents the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions thereof and transfers of interest therein. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.



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




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



29









 






     (2) an Officers’ Certificate from the Company.



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



     (d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Note that are held by Participants through Euroclear or
Clearsteam.



Section 2.02 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual or facsimile signature.



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



     A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Indenture.



     The Trustee will, upon receipt of a written order of the Company signed by two Officers (an
“Authentication Order”), authenticate Notes for original issue that may be validly issued under
this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding
at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the
Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 hereof.



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



Section 2.03 Registrar and Paying Agent.




     The Company will maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or Registrar without notice to
any Holder. The Company will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.



30









 





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



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



Section 2.04 Paying Agent to Hold Money in Trust.




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



Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders. If the Trustee is not the
Registrar, the Company will furnish to the Trustee at least seven Business Days before each
interest payment date and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes.



Section 2.06 Transfer and Exchange.




     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:




     (1) the Company delivers to the Trustee written notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such
effect to the Trustee; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Company for Definitive Notes prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant
to Rule 903(b)(3)(ii)(B) under the Securities Act; or




     (3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes and the Depositary or the Company specifically requests such exchange.



31









 





     Upon the occurrence of either of the preceding events in (1), (2) or (3) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c)
hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:



               (A) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




     (ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or



               (B) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and



32









 






     (ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above;
provided that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Regulation S Temporary Global
Note prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to Rule 903
under the Securities Act.


Upon satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(g) hereof.





     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:




     (A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof; and




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Temporary Global Note or the Regulation S Permanent Global
Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:



               (A) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




     (ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (A), if the Company or
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein



33









 






and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.



     If any such transfer is effected pursuant to subparagraph (A) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (A) above.



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



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




     (1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:




     (A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;




     (B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;




     (C) if such beneficial interest is being transferred to a Non-U.S. Person in
an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item (2)
thereof;




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




     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;




     (F) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or




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




34












 




the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.





     (2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.




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



               (A) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or




     (ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (A), if the Company or
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.



     (4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the



35









 




applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof,
and the Company will execute and the Trustee will authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(4) will be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect Participant. The
Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(4) will not bear the Private Placement Legend.




     (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




     (1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:




     (A) if the Holder of such Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;




     (B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;




     (C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;




     (D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;




     (E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;




     (F) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or




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




36












 






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




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




          (A) the Registrar receives the following:




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




               (ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;




and, in each such case set forth in this subparagraph (A), if the Company or
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.




     Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Note.




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




     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraph (2)(A) above at a time when an Unrestricted Global Note
has not yet been issued, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly



37









 







endorsed or accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of this Section 2.06(e).




          (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:




          (A) if the transfer will be made pursuant to Rule 144A, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;




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




          (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.




          (2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:




          (A) the Registrar receives the following:




               (i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or




               (ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (A), if the Company or
Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain compliance with
the Securities Act.




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



38









 





     (f) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.




          (1) Private Placement Legend.




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


“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR
THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.”





               (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2) or (e)(3)
of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.




          (2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A




39









 







NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.”





          (3) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Notes
will bear a legend in substantially the following form:


“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.”





          (4) Original Issue Discount Legend. Each Note issued with original issue discount will
bear a legend in substantially the following form:


“THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO
THE ISSUER AT THE FOLLOWING ADDRESS: VIASYSTEMS, INC., 101 SOUTH HANLEY ROAD, ST. LOUIS, MISSOURI,
63105, ATTENTION: CHIEF FINANCIAL OFFICER.”




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



     (h) General Provisions Relating to Transfers and Exchanges.




          (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.




          (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company



40









 







may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.15 and 9.04 hereof).




          (3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.




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




          (5) Neither the Registrar nor the Company will be required:




     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part;




     (C) to register the transfer of or to exchange a Note between a record date
and the next succeeding interest payment date; or




     (D) to register the transfer of or to exchange any Notes tendered and not
withdrawn in connection with a Change of Control Offer under Section 4.15 or an
Asset Sale Offer under Sections 3.09 and 4.10 hereof.




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




          (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.




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



Section 2.07 Replacement Notes.




     If any mutilated Note is surrendered to the Trustee or the Company and the Trustee or the
Company receives evidence to its satisfaction of the destruction, loss or theft of any Note, the
Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of (i) the
Trustee to protect the Trustee





41












 




and (ii) the Company to protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.




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



Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note;
however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(a) hereof.



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



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



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



Section 2.09 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned
will be so disregarded.



Section 2.10 Temporary Notes.




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



     Holders of temporary Notes will be entitled to all of the benefits of this Indenture.



Section 2.11 Cancellation.




42









 








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



Section 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date, provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.



Section 2.13 CUSIP Numbers.




     The Company in issuing the Notes shall use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.



ARTICLE 3.

REDEMPTION AND PREPAYMENT




Section 3.01 Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days but not more than 60 days
before the date of redemption (the “Redemption Date”), an Officers’ Certificate setting forth:



          (1) the clause of this Indenture pursuant to which the redemption shall occur;




          (2) the Redemption Date;




          (3) the principal amount of Notes to be redeemed;




          (4) the redemption price; and




          (5) applicable CUSIP Numbers.




43









 








Section 3.02 Selection of Notes to Be Redeemed or Purchased.




     If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee will select Notes for redemption or purchase on a pro rata basis (or, in the case
of Notes issued in global form pursuant to Article 2 hereof based on a method that most nearly
approximates a pro rata selection as the Trustee deems fair and appropriate) unless otherwise
required by law or applicable stock exchange or depositary requirements.



     In the event of partial redemption or purchase, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date or the purchase date by the Trustee from the outstanding Notes
not previously called for redemption or purchase.



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
or purchase and, in the case of any Note selected for partial redemption or purchase, the principal
amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in
amounts of $2,000 or integral multiples of $1,000 in excess of $2,000; provided that if all of the
Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by
such Holder even if not $2,000 or an integral multiple of $1,000 in excess of $2,000 shall be
redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture
that apply to Notes called for redemption or purchase also apply to portions of Notes called for
redemption or purchase.



Section 3.03 Notice of Redemption.




     Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days
before a Redemption Date, the Company will mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 11 of this Indenture.



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




     (1) the Redemption Date;




     (2) the redemption price;




     (3) 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 upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note (unless such unredeemed portion is equal to less than
$2,000 in principal amount);




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




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




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes or portions of Notes called for redemption ceases to accrue on and after the
Redemption Date;



44









 






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




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



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45
days prior to the Redemption Date (or such shorter period as is acceptable to the Trustee), an
Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.



Section 3.04 Effect of Notice of Redemption.




     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price. A
notice of redemption may not be conditional.



Section 3.05 Deposit of Redemption or Purchase Price.




     No later than 10:00 a.m. Eastern Time on the Redemption Date or the purchase date, the Company
will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued interest, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest, if any, on, all Notes to be redeemed or
purchased.



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



Section 3.06 Notes Redeemed or Purchased in Part.




     Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and,
upon receipt of an Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered. No Notes in denominations of $2,000 or less shall be redeemed in
part or purchased in part unless all of the Notes held by the Holder are to be redeemed or
purchased.



Section 3.07 Optional Redemption.




     (a) At any time prior to July 15, 2012, the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under this Indenture, upon not less than
30 nor more than 60 days’ prior notice, at a redemption price equal to 112.000% of the principal
amount of



45









 




the Notes redeemed, plus accrued and unpaid interest if any, to the Redemption Date, subject
to the rights of Holders of Notes on the relevant record date to receive interest on the relevant
interest payment date, with the net cash proceeds of one or more Equity Offerings of the Company or
a contribution to the Company’s common equity capital made with the net cash proceeds of a
concurrent Equity Offering of Parent or any direct or indirect parent company of the Company;
provided that:





     (1) at least 65% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and




     (2) the redemption occurs within 180 days of the date of the closing of such Equity
Offering.



     (b) At any time prior to July 15, 2012, the Company may also redeem all or a part of the
Notes, upon not less than 30 nor more than 60 days’ prior notice, at a redemption price equal to
100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued
and unpaid interest, if any, to the Redemption Date, subject to the rights of Holders of Notes on
the relevant record date to receive interest due on the relevant interest payment date.



     (c) Except pursuant to the preceding paragraphs, the Notes will not be redeemable at the
Company’s option prior to July 15, 2012.



     (d) On or after July 15, 2012, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ prior notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed,
to the applicable Redemption Date, if redeemed during the twelve-month period beginning on July 15
of the years indicated below, subject to the rights of Holders of Notes on the relevant record date
to receive interest on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2012
	 	 	106.000	%
	2013
	 	 	103.000	%
	2014 and thereafter
	 	 	100.000	%






     (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof. Unless the Company defaults in the payment of the redemption
price, interest will cease to accrue on the Notes or portions thereof called for redemption on the
applicable Redemption Date.



Section 3.08 Mandatory Redemption.




     The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



Section 3.09 Offer to Purchase by Application of Excess Proceeds.




     In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an
offer to all Holders to purchase Notes (an “Asset Sale Offer”), the Company will follow the
procedures specified below.



46









 





     The Asset Sale Offer shall be made to all Holders and all holders of other Shared Lien Debt
containing provisions similar to those set forth in this Indenture with respect to offers to
purchase, prepay or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and not more than 30
Business Days, except to the extent that a longer period is required by applicable law (the “Offer
Period”). No later than five days after the termination of the Offer Period (the “Purchase Date”),
the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such
other Shared Lien Debt (on a pro rata basis based on the principal amount of Notes and such other
Shared Lien Debt surrendered, if applicable) or, if less than the Offer Amount has been tendered,
all Notes and other Shared Lien Debt tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are made.



     If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose
name a Note is registered at the close of business on such record date, and no additional interest
will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.



     Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a
notice to the Trustee and each of the Holders. The notice will contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:




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




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




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




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




     (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in denominations of $2,000, or in integral multiples of $1,000
in excess of $2,000, only;




     (6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will
be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;




     (7) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;




     (8) that, if the aggregate principal amount of Notes and other Shared Lien Debt
surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes
and other Shared Lien Debt to be purchased on a pro rata basis based on the principal amount
of



47









 






Notes and such other Shared Lien Debt surrendered (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of $2,000, or in
integral multiples of $1,000 in excess of $2,000, will be purchased); and




     (9) that Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion (to the extent that such unpurchased portion
is equal to $2,000 in principal amount or an integral multiple of $1,000 in excess of
$2,000) of the Notes surrendered (or transferred by book-entry transfer).



     On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.09. The Paying Agent
will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to
each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder
and accepted by the Company for purchase, and the Company, will promptly issue a new Note, and the
Trustee, upon written request from the Company will authenticate and mail or deliver (or cause to
be transferred by book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered; provided that each new Note will be in a principal
amount of $2,000 or integral multiples of $1,000 in excess of $2,000. Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Asset Sale Offer on the Purchase Date.



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



ARTICLE 4.

COVENANTS




Section 4.01 Payment of Notes.




     The Company will pay or cause to be paid the principal of, premium on, if any, and interest
on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any,
and interest will be considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.



Section 4.02 Maintenance of Office or Agency.




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



48









 





     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



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



Section 4.03 Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will furnish to the Holders of Notes and the Trustee (or file with the SEC
for public availability), within the time periods specified in the SEC’s rules and regulations that
are applicable to registrants that are not accelerated filers:




     (1) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were required to file such reports, including a
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” a
presentation of Adjusted EBITDA of the Company and its subsidiaries consistent with the
presentation thereof in the Offering Circular and derived from the Company’s financial
statements and, with respect to the annual information only, a report thereon by the
Company’s certified independent accountants; and




     (2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.



     (b) All such reports will be prepared in all material respects in accordance with all of the
rules and regulations applicable to such reports. In addition, the Company will file a copy of
each of the reports referred to in clauses (1) and (2) of Section 4.03(a) hereof with the SEC for
public availability within the time periods specified in the SEC’s rules and regulations that are
applicable to such reports and that are applicable to registrants that are not accelerated filers
(unless the SEC will not accept such a filing) and will post the reports on its website within
those time periods.



     (c) Notwithstanding whether the Company is subject to the periodic reporting requirements of
the Exchange Act, the Company will nevertheless continue filing the reports specified in this
Section 4.03 with the SEC within the time periods specified above unless the SEC will not accept
such a filing. The Company will not take any action for the purpose of causing the SEC not to
accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s
filings for any reason, the Company will post the reports referred to in the preceding paragraphs
on its website within the time periods that would apply if the Company were required to file those
reports with the SEC.



     (d) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then
the quarterly and annual financial information required by the preceding paragraphs will include a
reasonably detailed presentation, either on the face of the financial statements or in the
footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results
of Operations, of the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company.



     (e) In addition, if at any time Parent or any direct or indirect parent holding company of the
Company becomes a Guarantor of the Notes in accordance with this Indenture (there being no
obligation of any such entity to do so), such entity has no material assets other than cash, Cash
Equivalents,



49









 




receivables owed by any of its Subsidiaries to such entity and the Capital Stock of the
Company and any other direct or indirect parent holding company of the Company, the reports,
information and other documents required to be filed pursuant to this Section 4.03 may, at the
option of the Company, be furnished by and be those of such entity rather than the Company.




     (f) So long as any Notes are outstanding, the Company will also:




     (1) within 10 Business Days after filing a copy of each of the reports referred to in
clauses (1) and (2) of Section 4.03(a) hereof with the SEC, hold a conference call to
discuss such reports and the results of operations for the relevant reporting period; and




     (2) issue a press release to an internationally recognized wire service no fewer than
three Business Days prior to the date of the conference call required to be held in
accordance with this paragraph, announcing the time and date of such conference call and
either including all information necessary to access the call or directing the Holders of
the Notes, prospective investors, broker-dealers and securities analysts to contact the
appropriate person at the Company to obtain such information.



     (g) The Company shall furnish to the Holders of the Notes, prospective investors,
broker-dealers and securities analysts, upon their request, any information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely
transferable under the Securities Act.



     (h) 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 4.04 Compliance Certificate.




     (a) The Company and each Guarantor shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the principal of,
premium on, if any, or interest on, the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to take with respect
thereto.



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
within five Business Days of any Officer becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.



Section 4.05 Taxes.



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



Section 4.06 Stay, Extension and Usury Laws.




     The Company and each of the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not, by resort to any
such law, 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 has been enacted.



Section 4.07 Restricted Payments.




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




     (I) declare or pay any dividend or make any other payment or distribution on account
of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than Disqualified Stock)
of the Company and other than dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company);




     (II) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company;




     (III) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that
is unsecured (excluding any unsecured Indebtedness of the Company or any Guarantor that is
incurred pursuant to clause (16) of Section 4.09(b hereof)) or is contractually subordinated
to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or
among the Company and any of its Restricted Subsidiaries), except a payment of interest or a
payment of principal at, or within one year of, the Stated Maturity thereof; or




     (IV) make any Restricted Investment


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





     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;



51









 






     (2) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a);
and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the date of this
Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7),
(8), (11), (12), (14) and (15) of Section 4.07(b) hereof), is less than the sum, without
duplication of:




     (A) 50% of the Consolidated Net Income of the Company, for the period (taken
as one accounting period) from the beginning of the first fiscal quarter
commencing after the date of this Indenture to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit); plus




     (B) 100% of the aggregate net proceeds received by the Company since the date
of this Indenture (other than those received by the Company concurrently with, or
in connection with, the Merger) as a contribution to its common equity capital or
from the issue or sale of Equity Interests of the Company (other than Disqualified
Stock) provided that the value of any non-cash net proceeds (which in each case
shall be assets of the type used or useful in a Permitted Business or Capital
Stock of a Person engaged in a Permitted Business) shall be as determined by the
Board of Directors in good faith; plus




     (C) 100% of the amount by which Indebtedness of the Company is reduced on its
balance sheet upon the conversion or exchange (other than by a Restricted
Subsidiary of the Company) subsequent to the date of this Indenture of any
Indebtedness of the Company for Equity Interests (other than Disqualified Stock)
of the Company (less the amount of cash, or other property, distributed by the
Company upon such conversion or exchange); plus




     (D) the amount equal to the net reduction in Restricted Investments made by
the Company or any of its Restricted Subsidiaries in any Person resulting from:




     (i) repurchases or redemptions of any such Restricted Investment by
such Person, proceeds realized upon the sale of such Restricted Investment
to a Person that is not an Affiliate of the Company, and repayments of loans
or advances or other transfers of assets by such Person to the Company or
any Restricted Subsidiary of the Company; or




     (ii) the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
“Investment”) not to exceed, in the case of any Unrestricted Subsidiary, the
amount of Restricted Investments previously made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary, to the extent that
such amount was included in the calculation of the amount of Restricted
Payments;




provided, however, that no amount shall be included under this clause (D) to the
extent it is already included in Consolidated Net Income; plus



52









 






     (E) 50% of any dividends received by the Company or a Restricted Subsidiary
of the Company after the date of this Indenture from an Unrestricted Subsidiary of
the Company, to the extent that such dividends were not otherwise included in the
Consolidated Net Income of the Company for such period; plus




     (F) 100% of the aggregate net cash proceeds received by a Person in
consideration for the issuance of such Person’s Capital Stock (other than
Disqualified Stock) that are held by such Person at the time such Person is merged
with and into the Company in accordance with Section 5.01 hereof; provided,
however, that concurrently with or immediately following such merger the Company
uses an amount equal to such net cash proceeds to redeem or repurchase the
Company’s Capital Stock.



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




     (1) the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of the dividend or giving of the redemption
notice, as the case may be, if at the date of declaration or notice, the dividend or
redemption payment would have complied with the provisions of this Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of or with the net
proceeds (other than those received by the Company concurrently with, or in connection with,
the Merger) of the substantially concurrent sale (other than to a Subsidiary of the Company)
of, Equity Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution of common equity capital to the Company; provided that
the amount of any such net proceeds that are used for any such Restricted Payment will be
excluded from clause (3)(B) of Section 4.07(a) hereof and clause 6(A) of this Section
4.07(b);




     (3) the repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness of the Company or any Guarantor that is unsecured or is contractually
subordinated to the Notes or to any Note Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing Indebtedness;




     (4) any purchase or redemption of Indebtedness of the Company or any Guarantor that is
unsecured or is contractually subordinated to the Notes or to any Note Guarantee pursuant to
provisions similar to those described under Section 4.15 or Section 4.10 of this Indenture;
provided that a Change of Control Offer or an Asset Sale Offer, as applicable, has been made
and all Notes tendered by Holders in connection with such Change of Control Offer or Asset
Sale Offer, as applicable, have been repurchased, redeemed or acquired for value;




     (5) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Equity Interests on a pro rata basis;




     (6) so long as no Default or Event of Default has occurred and is continuing or would
be caused thereby, the repurchase, redemption or other acquisition or retirement for value
of any Equity Interests of Parent or any direct or indirect parent company of the Company,
the Company or any Restricted Subsidiary of the Company (or payments to Parent or any direct
or indirect parent company of the Company to make such repurchase, redemption or other
acquisition or retirement for value) held by any current or former officer, director or
employee of the Company or any of its Restricted Subsidiaries pursuant to any equity
subscription agreement, stock option agreement, shareholders’ agreement or similar
agreement; provided that the aggregate price paid



53









 






for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed
$10.0 million; provided further that such amount may be increased by an amount not to
exceed:




     (A) the net cash proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Company) of, Equity Interests of the Company (other than
Disqualified Stock) or from the substantially concurrent contribution of common
equity capital to the Company, in each case to or from, as applicable, members of
management, directors or consultants of the Company, any of its Subsidiaries or
any of its direct or indirect parent companies that occurs after the date of this
Indenture; provided that the amount of any such net cash proceeds that are used
for a Restricted Payment pursuant to this clause (6)(A) will be excluded from
clause (3)(B) of Section 4.07(a) hereof and clause (2) of this Section 4.07(b);
plus




     (B) the cash proceeds of key man life insurance policies received by the
Company or its Restricted Subsidiaries after the date of this Indenture.




In addition, cancellation of Indebtedness owing to the Company from any current or former
officer, director or employee (or any permitted transferees thereof) of the Company or any
of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in
connection with a repurchase of Equity Interests of the Company from such Persons will not
be deemed to constitute a Restricted Payment for purposes of this Section 4.07 or any other
provisions of this Indenture;




     (7) the repurchase, redemption or other acquisition or retirement for value of any
Senior Subordinated Notes;




     (8) the repurchase of Equity Interests deemed to occur upon the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise price of
those stock options;




     (9) payments to enable the Company or Parent or any direct or indirect parent company
of the Company to allow the payment of cash in lieu of the issuance of fractional shares
upon (i) the exercise of options or warrants or (ii) the conversion or exchange of Capital
Stock of any such person;




     (10) so long as no Default or Event of Default has occurred and is continuing or would
be caused thereby, the designation of a Subsidiary as an Unrestricted Subsidiary in
accordance with Section 4.17 of this Indenture if the Subsidiary to be so designated has
total consolidated assets of $10,000 or less;




     (11) so long as no Default or Event of Default has occurred and is continuing or would
be caused thereby, the declaration and payment of regularly scheduled or accrued dividends
to holders of any class or series of Disqualified Stock of the Company or any preferred
stock of any Restricted Subsidiary of the Company issued on or after the date of this
Indenture in accordance with the Fixed Charge Coverage Ratio test described in Section
4.09(a) of this Indenture;




     (12) Permitted Payments to Parent;




     (13) so long as no Default or Event of Default has occurred and is continuing or would
be caused thereby, payments of dividends on the Company’s common stock (or payments to
Parent or any direct or indirect parent company of the Company to pay dividends on its
common stock) after an initial public offering of common stock of the Company or of Parent
or any direct



54









 






or indirect parent company of the Company, as the case may be, in an annual amount not
to exceed 6.0% of the gross proceeds (before deducting underwriting discounts and
commissions and other fees and expenses of the offering) received by the Company from shares
of common stock sold for the account of the Company (and not for the account of any
stockholder) in such initial public offering or, in the case of any initial public offering
of Parent or any direct or indirect parent company of the Company, an annual amount not to
exceed 6.0% of the amount contributed to the common or non-redeemable preferred equity of
the Company by Parent or any direct or indirect parent company of the Company from the Net
Proceeds of an initial public offering of Parent or any direct or indirect parent company of
the Company;




     (14) payments on the date of the consummation of the Merger necessary to consummate
the Merger as described in the Offering Circular under the heading “Pending Merger with
Merix Corporation and Related Transactions”; and




     (15) other Restricted Payments in an amount which, taken together with all other
Restricted Payments made pursuant to this clause (15), do not exceed $10.0 million.



     The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the
date of the Restricted Payment of the assets or securities proposed to be transferred or issued by
the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued by this Section
4.07 will be determined by the Board of Directors of the Company whose resolution with respect
thereto shall be delivered to the Trustee.



Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:




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




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




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



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




     (1) agreements governing Existing Indebtedness, the Senior Subordinated Notes and
Credit Facilities as in effect on the date of this Indenture and any amendments,
restatements, modifications, renewals, supplements, refundings, replacements or refinancings
of those agreements; provided that the amendments, restatements, modifications, renewals,
supplements, refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions than those
contained in those agreements on the date of this Indenture;



55









 






     (2) this Indenture, the Notes and the Note Guarantees;




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




     (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred in connection with or
in contemplation of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; provided that, in the case of Indebtedness,
such Indebtedness was permitted by the terms of this Indenture to be incurred;




     (5) any agreement evidencing Indebtedness incurred without violation of this Indenture,
or any amendment, restatement, modification, renewal, supplement, refunding, replacement or
refinancing of any agreement referred to in clauses (1) or (4) or this clause (5); provided
that the encumbrances or restrictions contained in any such agreement, amendment,
restatement, modification, renewal, supplement, refunding, replacement or refinancing, taken
as a whole, are either (in each case, as determined in good faith by the senior management
of the Company) (i) not materially less favorable to the Holders of the Notes than
encumbrances and restrictions contained in agreements in effect at, or entered into on, the
date of this Indenture or (ii) (x) customary for instruments of such type and (y) will not
materially adversely impact the ability of the Company to make required principal and
interest payments on the Notes;




     (6) any agreement or provision that (a) restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease, license, conveyance or
contract or similar property or asset, (b) creates an encumbrance or restriction by virtue
of any transfer of, agreement to transfer, option or right with respect to any property or
assets of the Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture, (c) is a licensing agreement to the extent such agreement limits the transfer of
the property subject to such licensing agreement or (d) creates an encumbrance or
restriction arising or agreed to in the ordinary course of business and that does not,
individually or in the aggregate, detract from the value of property or assets of the
Company or any of its Subsidiaries in any manner material to the Company or any such
Restricted Subsidiary as determined in good faith by senior management of the Company;




     (7) purchase money obligations for property acquired in the ordinary course of business
and Capital Lease Obligations that impose restrictions on the property purchased or leased
of the nature described in clause (3) of Section 4.08(a) hereof;




     (8) any agreement for the sale or other disposition of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending its sale or other disposition;




     (9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, as determined in good faith by the senior management of the
Company, than those contained in the agreements governing the Indebtedness being refinanced;




     (10) Foreign Subsidiary Debt;




     (11) Liens that limit the right of the debtor to dispose of the assets subject to such
Liens;




     (12) Liens permitted to be incurred under Section 4.12 of this Indenture;



56









 






     (13) Priority Lien Debt that limits the right of the debtor to dispose of the assets
securing such Indebtedness that is otherwise permitted to be incurred pursuant Sections 4.09
and 4.12 of this Indenture;




     (14) provisions limiting the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements
and other similar agreements (including agreements entered into in connection with a
Restricted Investment) entered into with the approval of the Company’s Board of Directors,
which limitation is applicable only to the assets or entities that are the subject of such
agreements;




     (15) customary provisions in joint venture agreements and other similar agreements
relating solely to such joint venture and its Subsidiaries or such similar agreements; and




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



Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock, and the Company’s Restricted Subsidiaries may incur Indebtedness (including Acquired Debt)
or issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended
four full fiscal quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or
such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined
on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been
issued, as the case may be, at the beginning of such four-quarter period.



     (b) The provisions of Section 4.09(a) will not prohibit the incurrence of any of the following
items of Indebtedness (collectively, “Permitted Debt”):




     (1) the incurrence by the Company and the Guarantors of additional Indebtedness and
letters of credit under Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and the Guarantors
thereunder) not to exceed (as of any date of incurrence of Indebtedness under the provision
described in this clause (1) and after giving pro forma effect to such incurrence and the
application of the net proceeds therefrom) the greater of (a) $75.0 million and (b) the
amount of the Borrowing Base as of the date of such incurrence;




     (2) the incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Initial Notes and the related Note Guarantees in respect of the Initial Notes to be issued
on the date of this Indenture;



57









 






     (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries, in each case
incurred no later than 365 days after the date of such acquisition or the date of completion
of such construction, installation or improvement, in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance,
replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to
exceed $15.0 million at any time outstanding;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a)
hereof or clauses (2), (3) or (5) of this Section 4.09(b);




     (6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided,
however, that:




     (A) if the Company or any Guarantor is the obligor on such Indebtedness and
the payee is not the Company or a Guarantor, such Indebtedness must be unsecured
and expressly subordinated to the prior payment in full in cash of all Obligations
then due with respect to the Notes, in the case of the Company, or the Note
Guarantee, in the case of a Guarantor; and




     (B) (i) any subsequent issuance or transfer of Equity Interests that results
in any such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary of the Company and (ii) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as
the case may be, that was not permitted by this clause (6);




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:




     (A) any subsequent issuance or transfer of Equity Interests that results in
any such preferred stock being held by a Person other than the Company or a
Restricted Subsidiary of the Company; and




     (B) any sale or other transfer of any such preferred stock to a Person that
is not either the Company or a Restricted Subsidiary of the Company,


will be deemed, in each case, to constitute an issuance of such preferred stock by such
Restricted Subsidiary that was not permitted by this clause (7);





     (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business;



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     (9) the Guarantee by the Company or a Restricted Subsidiary of Indebtedness of the
Company or a Restricted Subsidiary of the Company that was permitted to be incurred by
another provision of this Section 4.09; provided that if the Indebtedness being guaranteed
is subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or
pari passu, as applicable, to the same extent as the Indebtedness guaranteed;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness:




     (A) in respect of performance bonds, bankers’ acceptances and surety or
appeal bonds provided by the Company or any of its Restricted Subsidiaries to
their customers in the ordinary course of their business,




     (B) in respect of performance bonds or similar obligations of the Company or
any of its Restricted Subsidiaries for or in connection with pledges, deposits or
payments made or given in the ordinary course of business in connection with or to
secure statutory, regulatory or similar obligations, including obligations under
health, safety or environmental obligations, and




     (C) arising from Guarantees to suppliers, lessors, licensees, contractors,
franchisees or customers of obligations (other than Indebtedness) incurred in the
ordinary course of business;




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in each case incurred in connection with the
disposition of any business, assets or Restricted Subsidiary of the Company (other than
Guarantees of Indebtedness or other obligations incurred by any Person acquiring all or any
portion of such business assets or Restricted Subsidiary of the Company for the purpose of
financing such acquisition) in a principal amount not to exceed the gross proceeds actually
received by the Company or any of its Restricted Subsidiaries in connection with such
disposition;




     (12) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds in the ordinary
course of business, provided that such Indebtedness is extinguished promptly in accordance
with customary practices;




     (13) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from agreements with governmental agencies of any foreign country, or
political subdivision or agency thereof, relating to the construction of plants and the
purchase and installation (including related training costs) of equipment to be used in a
Permitted Business; provided that such Indebtedness (a) has a Stated Maturity in excess of
the final maturity of the Notes plus 91 days and (b) in the aggregate does not exceed $25.0
million since the date of this Indenture;




     (14) the Senior Subordinated Notes;




     (15) the incurrence by the Company’s Foreign Subsidiaries of Foreign Subsidiary Debt in
an aggregate principal amount (or accreted value, as applicable) at any time outstanding,



59









 






including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance,
replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to
exceed the greater of (a) $80.0 million or (b) 1.50% of the Total Assets of the Company’s
Foreign Subsidiaries as of any date of incurrence of Indebtedness pursuant to this clause
(15);




     (16) the incurrence of Indebtedness of Persons that are acquired by the Company or any
of its Restricted Subsidiaries or merged with or into the Company or any of its Restricted
Subsidiaries in accordance with the terms of this Indenture; provided that (a) such
Indebtedness is not incurred in contemplation of such acquisition or merger and (b) the
Company would have a Fixed Charge Coverage Ratio immediately after giving pro forma effect
to such acquisition or merger (and such incurrence) equal to or greater than the Fixed
Charge Coverage Ratio of the Company immediately preceding such acquisition or merger (and
such incurrence);




     (17) the incurrence by the Company or any its Restricted Subsidiaries of Banking
Product Obligations in the ordinary course of business; and




     (18) the incurrence by the Company or any of the Guarantors of additional Indebtedness
in an aggregate principal amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance,
replace, defease or discharge any Indebtedness incurred pursuant to this clause (18), not to
exceed $75.0 million.



     (c) Notwithstanding any other provision of this Section 4.09:




     (1) in no event will the Company permit its Restricted Subsidiaries that are not
Guarantors to incur Indebtedness or issue preferred stock pursuant to Section 4.09(a) of
this Indenture or pursuant to clause (15) of Section 4.09(b) of this Indenture having an
aggregate principal amount at any one time outstanding (with letters of credit being deemed
to have a principal amount equal to the maximum potential liability of such Restricted
Subsidiaries thereunder and preferred stock being deemed to have a principal amount equal to
the liquidation preference thereof) together with all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred by such non-Guarantor pursuant to Section 4.09(a) of this Indenture or pursuant to
clause (15) of Section 4.09(b) of this Indenture, in excess of $100.0 million; and




     (2) the Company will not incur, and will not permit any Guarantor to incur, any
Indebtedness (including Permitted Debt) that is contractually subordinated in right of
payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness
is also contractually subordinated in right of payment to the Notes and the applicable Note
Guarantee on substantially identical terms.



     For purposes of determining compliance with this Section 4.09, in the event that an item of
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (18) of Section 4.09(b) hereof, or is entitled to be incurred
pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item of
Indebtedness or any portion thereof on the date of its incurrence, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this Section 4.09.
Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and
authenticated under this Indenture will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of Section 4.09(b). The accrual of interest or
preferred stock dividends, the accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the same terms,



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the reclassification of preferred stock as Indebtedness due to a change in accounting
principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of
additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to
be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for
purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in
Fixed Charges of the Company as accrued. For purposes of determining compliance with any U.S.
dollar denominated restriction on the incurrence of Indebtedness, the U.S. dollar equivalent
principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated
based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred.
Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that
the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.




          The amount of any Indebtedness outstanding as of any date will be:




          (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;




          (2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and




          (3) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:





     (A) the Fair Market Value of such assets at the date of determination, and




     (B) the amount of the Indebtedness of the other Person.



Section 4.10 Asset Sales.




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




     (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value
(measured as of the date of the definitive agreement with respect to such Asset Sale) of the
assets or Equity Interests issued or sold or otherwise disposed of; and




     (2) at least 75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that for purposes
of this provision, each of the following shall be deemed to be cash:




     (A) any liabilities, as shown on the Company’s most recent consolidated
balance sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or
any Note Guarantee) that are assumed by the transferee of any such assets pursuant
to a customary novation or indemnity agreement that releases the Company or such
Restricted Subsidiary from or indemnifies the Company or such Restricted
Subsidiary against further liability;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are not Cash Equivalents but
are




61












 






contemporaneously, subject to ordinary settlement periods, converted by the
Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent
of the cash or Cash Equivalents received in that conversion;




     (C) any Designated Noncash Consideration received by the Company or any of
its Restricted Subsidiaries in an Asset Sale having an aggregate Fair Market Value
(as determined in good faith by the Board of Directors of the Company at the time
received without giving effect to subsequent changes in value), taken together
with all other Designated Noncash Consideration received pursuant to this clause
(C) that is at that time outstanding, not to exceed 5.0% of the Company’s Total
Assets; and




     (D) any stock or assets of the kind referred to in clauses (3), (4) or (5) of
Section 4.10(b) below.



     (b) Within 360 days after the receipt of any Net Proceeds received from an Asset Sale, the
Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:




     (1) to repay, repurchase or redeem Priority Lien Obligations;




     (2) to repay Indebtedness of a Restricted Subsidiary of the Company that is not a
Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary and,
if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto;




     (3) to acquire all or substantially all of the assets of, or any Capital Stock of,
another Permitted Business, if, after giving effect to any such acquisition of Capital
Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;




     (4) to make a capital expenditure;




     (5) to acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business; or




     (6) any combination of the foregoing;


provided that the Company will be deemed to have complied with clauses (3), (4) and/or (5) of this
Section 4.10(b) if and to the extent that, within 360 days after the Asset Sale that generated the
Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to
acquire the assets or Capital Stock of a Permitted Business, make a capital expenditure and/or
acquire other assets in compliance with clauses (3), (4) and/or (5) of this Section 4.10(b), and
that acquisition or capital expenditure is thereafter completed within 90 days after the end of
such 360-day period.




     (c) Pending the final application of any Net Proceeds from an Asset Sale, the Company (or the
applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise
invest Net Proceeds from an Asset Sale in any manner that is not prohibited by this Indenture. Any
Net Proceeds from an Asset Sale that are not applied or invested as provided in Section 4.10(b)
hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds
$25.0 million, within 30 days thereof, the Company will make an offer (an “Asset Sale Offer”) to
all Holders of Notes and all holders of other Shared Lien Debt containing provisions similar to
those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the
proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem
the maximum principal amount of Notes and such



62









 




other Shared Lien Debt (plus all accrued interest on such Indebtedness and the amount of all
fees and expenses, including premiums, incurred in connection therewith) that may be purchased,
prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes and any other Shared
Lien Debt in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and
such other Shared Lien Debt purchased, plus accrued and unpaid interest, if any, on the Notes and
any other Shared Lien Debt, to the date of purchase, prepayment or redemption, subject to the
rights of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date, and will be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other
Shared Lien Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset
Sale Offer exceeds the amount of Excess Proceeds, the Company will select the Notes and such other
Shared Lien Debt to be purchased on a pro rata basis, based on the principal amount of Notes and
such other Shared Lien Debt tendered or required to be prepaid or redeemed (with such adjustments
as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an
integral multiple of $1,000 in excess of $2,000, will be left outstanding). Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.




     (d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under Section 3.09
hereof or this Section 4.10, by virtue of such compliance.



Section 4.11 Transactions with Affiliates.




     (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of
the Company (each an “Affiliate Transaction”) involving aggregate payments or consideration in
excess of $1.0 million, unless:




     (1) such Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person; and




     (2) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0 million, a
resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with clause (1) of
this Section 4.11(a) and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors of the Company;
and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from



63









 







a financial point of view issued by an accounting, appraisal or investment
banking firm of national standing.



     (b) The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.11(a) hereof:



          (1) any employment agreement, employee benefit plan, officer or director indemnification
agreement or any similar arrangement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and payments pursuant thereto;



          (2) transactions between or among the Company and/or its Restricted Subsidiaries;



          (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is
an Affiliate of the Company solely because the Company owns, directly or through a Restricted
Subsidiary, an Equity Interest in, or controls, such Person;



          (4) payment of reasonable directors’ fees to directors of the Company and any direct or
indirect parent of the Company and other reasonable fees, compensation, benefits and indemnities
paid or entered into by the Company or its Restricted Subsidiaries to or with the officers and
directors of the Company, any direct or indirect parent of the Company and any Restricted
Subsidiary of the Company;



          (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates of the Company;



          (6) Permitted Investments and Restricted Payments that do not violate Section 4.07 hereof;



          (7) payment of fees not in excess of the amounts specified in, or determined pursuant to,
the Monitoring and Oversight Agreement, as in effect on the date of this Indenture;



          (8) transactions pursuant to supply or similar agreements entered into in the ordinary
course of business on customary terms that are not less favorable to the Company than those that
would have been obtained in a comparable transaction with an unrelated Person, as determined in
good faith by senior management of the Company;



          (9) loans or advances to employees in the ordinary course of business not to exceed $5.0
million in the aggregate at any one time outstanding;



          (10) Permitted Payments to Parent; and



          (11) transactions pursuant to agreements in existence on the date of this Indenture as in
effect on the date of this Indenture.



Section 4.12 Liens.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind
securing Indebtedness or trade payables (other than Permitted Liens) upon any of their property or
assets, now owned or hereafter acquired.



Section 4.13 Business Activities.



64









 





     The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any
business other than Permitted Businesses, except to such extent as would not be material to the
Company and its Restricted Subsidiaries taken as a whole.



Section 4.14 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:



     (1) 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 the Company or any such Subsidiary; and



     (2) 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 Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to the Holders
of the Notes.



Section 4.15 Offer to Repurchase Upon Change of Control.




     (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (provided that no Notes of $2,000 or
less can be redeemed in part) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest, if any, on the Notes
repurchased to the date of purchase, subject to the rights of Holders of Notes on the relevant
record date to receive interest due on the relevant interest payment date (the “Change of Control
Payment”). Within 30 days following any Change of Control, the Company will mail a notice to each
Holder describing the transaction or transactions that constitute the Change of Control and
stating:




     (1) that the Change of Control Offer is being made pursuant to this Section 4.15 and
that all Notes tendered will be accepted for payment;




     (2) the purchase price and the purchase date, which shall be no earlier than 30 days
and no later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date”);




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




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




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



65









 






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




     (7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess of $2,000.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of this Section 4.15, the Company will comply with the applicable securities laws and regulations
and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such
compliance.




     (b) On the Change of Control Payment Date, the Company will, to the extent lawful:




     (1) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;




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




     (3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.



     The Paying Agent will promptly mail or deliver (but in any case not later than five days after
the Change of Control Payment Date) to each Holder of Notes properly tendered the Change of Control
Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.



     (c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) a notice of redemption has been given for all
of the Notes pursuant to Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price. Notwithstanding anything to the contrary contained herein, a revocable
Change of Control Offer may be made in advance of a Change of Control, conditioned upon
consummation of such Change of Control, if a definitive agreement is in place for the Change of
Control at the time the Change of Control Offer is made.



Section 4.16 Additional Note Guarantees.



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     If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary after the date of this Indenture, or any Domestic Subsidiary that constitutes an
Immaterial Subsidiary ceases to be an Immaterial Subsidiary, then the Company shall (1) cause such
Subsidiary to become (a) a Guarantor and to execute a Note Guarantee pursuant to a supplemental
indenture and (b) a “Grantor” under and as defined in the applicable Security Documents by
executing and delivering to the Trustee and the Collateral Trustee a supplement to such Security
Documents and (2) deliver an Opinion of Counsel to the Trustee and the Collateral Trustee within 30
days of the date on which it was acquired or created (or ceased to be an Immaterial Subsidiary);
provided that any Domestic Subsidiary that constitutes an Immaterial Subsidiary need not become a
Guarantor until such time as it ceases to be an Immaterial Subsidiary. In addition, if any Person
guarantees any Priority Lien Obligations and such Person is not a Guarantor at the time such
Guarantee is provided, then the Company shall cause such Person to become a Guarantor and to
execute a Note Guarantee pursuant to a supplemental indenture and applicable Security Documents and
deliver an Opinion of Counsel satisfactory to the Trustee within 30 days of the date on which such
Person became a guarantor in respect of such Priority Lien Obligations. The form of such
supplemental indenture is attached as Exhibit F hereto.



Section 4.17 Designation of Restricted and Unrestricted Subsidiaries.




     The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an
Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation
and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one
or more clauses of the definition of Permitted Investments, as determined by the Company. That
designation will only be permitted if (a) either (i) the Subsidiary to be so designated has total
consolidated assets of $10,000 or less or (ii) if such Subsidiary has consolidated assets greater
than $10,000, the Investment would be permitted at that time and (b) the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.



     The Board of Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if that redesignation would not cause a Default.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of
Directors giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the preceding conditions and was permitted by Section 4.07 hereof If, at
any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to
be incurred as of such date under Section 4.09 hereof, the Company will be in default of such
covenant. The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company; provided that (i) (A) such designation
will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if such Indebtedness is permitted under Section 4.09 of this Indenture, calculated on a
pro forma basis as if such designation had occurred at the beginning of the four-quarter reference
period; (B) such designation will be deemed to be an Investment by a Restricted Subsidiary of the
Company in any outstanding Investments of such Unrestricted Subsidiary, and such designation will
only be permitted if such Investments would be permitted under Section 4.07 of this Indenture; and
(C) such designation will be deemed to be an incurrence of Liens by a Restricted Subsidiary of the
Company of any



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outstanding Liens upon property or assets of such Unrestricted Subsidiary, and such
designation will only be permitted if such Liens would be permitted under Section 4.12 of this
Indenture and (ii) no Default or Event of Default would be in existence following such designation.




Section 4.18 Redemption of the Senior Subordinated Notes.




     On the date of this Indenture, the Company will mail or cause to be mailed pursuant to and in
accordance with the Senior Subordinated Note Indenture an irrevocable notice of redemption to all
holders of Senior Subordinated Notes then outstanding. Such notice of redemption will state, among
the other information required to be included therein under the Senior Subordinated Note Indenture,
that the Company will redeem all then-outstanding Senior Subordinated Notes on January 15, 2010
(the “Senior Subordinated Notes Redemption Date”). On the Senior Subordinated Notes Redemption
Date, the Company will redeem all then-outstanding Senior Subordinated Notes pursuant to and in
accordance with such notice of redemption and the provisions of the Senior Subordinated Note
Indenture.



Section 4.19 Additional Collateral.




     The Company and each Guarantor shall grant to the Collateral Trustee a first priority security
interest in all Collateral (subject to Permitted Liens), whether owned on the date hereof or
hereafter acquired, and shall execute and deliver all documents and shall take all actions
reasonably necessary to perfect and protect such security interest in favor of the Collateral
Trustee (including, without limitation, the delivery of any applicable foreign pledge, control
agreement, mortgage, title insurance policy, title survey, evidence of flood insurance or legal
opinion), subject to the terms of the Intercreditor Agreement (if then in effect).



     In the event that the Company or any Guarantor acquires any interest in real property and such
interest has not otherwise been made subject to the Lien of the Security Documents in favor of
Collateral Trustee, for the benefit of the Holders of Notes and the holders of other Shared Lien
Obligations (if any), then the Company or such Guarantor, as applicable, shall promptly take all
such actions and execute and deliver, or cause to be executed and delivered, all such customary
mortgages, documents, instruments, agreements, opinions, title insurance policies, title surveys,
evidence of flood insurance and certificates or, to the extent that any Priority Lien Obligations
are incurred, substantially similar to such mortgages, documents, instruments, agreements,
opinions, title insurance policies, title surveys, evidence of floor insurance and certificates as
are executed and/or delivered to the Priority Lien Collateral Agent (or such other representative
of the holders of Priority Lien Obligations) in connection with the incurrence of such Priority
Lien Obligations or otherwise, to create in favor of the Collateral Trustee, for the benefit of the
Holders of Notes and the holders of other Shared Lien Obligations (if any), a valid and, subject to
any filing and/or recording required in connection therewith, perfected first priority security
interest (subject, in the case of priority only, to Permitted Liens) in such interest in real
property. In addition to the foregoing, the Company and each Guarantor shall deliver to the
Collateral Trustee such appraisals as are required by law or regulation of any interest in real
property with respect to which the Collateral Trustee has been granted a Lien.



ARTICLE 5.

SUCCESSORS




Section 5.01 Merger, Consolidation or Sale of Assets.




     The Company shall not, directly or indirectly: (1) consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer,
convey,



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lease or otherwise dispose of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to
another Person, unless:





     (1) either:




     (A) the Company is the surviving corporation; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance,
lease or other disposition has been made (the “Successor Company”) is a
corporation organized or existing under the laws of the United States, any state
of the United States or the District of Columbia;




     (2) the Successor Company assumes all the obligations of the Company under the Note
Documents;




     (3) immediately after such transaction, no Default or Event of Default exists; and




     (4) the Company or the Successor Company would, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof.



     The Successor Company will succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture, but, in the case of a lease of all or substantially
all its assets, the Company will not be released from the obligation to pay the principal of and
interest on the Notes.




     This Section 5.01 will not apply to:




     (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating
the Company in another jurisdiction to realize tax or other benefits; or




     (2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease
or other disposition of assets between or among the Company and its Restricted Subsidiaries.



Section 5.02 Successor Corporation Substituted.




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



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ARTICLE 6.

DEFAULTS AND REMEDIES




Section 6.01 Events of Default.




     Each of the following is an “Event of Default”:




     (1) the Company defaults for 30 days in the payment when due of interest on the Notes;




     (2) the Company defaults in the payment when due (at maturity, upon redemption or
otherwise) of the principal of, or premium, if any, on, the Notes;




     (3) the Company or any of its Restricted Subsidiaries fails to comply with the
provisions of Section 5.01 hereof;




     (4) failure by the Company or any of its Restricted Subsidiaries for 30 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with the provisions
in Section 4.10 or Section 4.15 of this Indenture;




     (5) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in this Indenture;




     (6) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company, any of its Significant Subsidiaries or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary (or the payment of
which is guaranteed by the Company or any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary), whether such Indebtedness or Guarantee now exists, or is created after the date
of this Indenture, if that default:




     (A) is caused by a failure to pay when due (at maturity, upon redemption or
otherwise) the principal of such Indebtedness on the date of such default (a
“Payment Default”); or




     (B) results in the acceleration of such Indebtedness prior to its express
maturity,


and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $25.0 million or more;





     (7) failure by the Company, any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $25.0 million (to the extent not covered by insurance), which
judgments are not paid, discharged or stayed for a period of 60 days;



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     (8) the occurrence of any of the following:




     (A) any Shared Lien Document is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect,
other than in accordance with the terms of the relevant Shared Lien Document and
this Indenture; or




     (B) default by the Company or any Guarantor in the performance of any
Security Document, which adversely affects the enforceability, validity,
perfection or priority of a Shared Lien or which adversely affects the condition
or value of Collateral in each case, taken as a whole, in any material respect; or




     (C) except as permitted by this Indenture, any Shared Lien purported to be
granted under any Security Document on Collateral, individually or in the
aggregate, having a Fair Market Value in excess of $5.0 million ceases to be an
enforceable and perfected Lien; or




     (D) the Company or any Guarantor, or any Person acting on behalf of any of
them, denies or disaffirms, in writing, any obligation of the Company or any
Guarantor set forth in or arising under any Shared Lien Document;




     (9) except as permitted by this Indenture, any Note Guarantees of any Guarantor that is
a Significant Subsidiary or of any group of Guarantors that, taken together, would
constitute a Significant Subsidiary is held in any judicial proceeding to be unenforceable
or invalid or ceases for any reason to be in full force and effect, or any Guarantor that is
a Significant Subsidiary or of any group of Guarantors that, taken together, would
constitute a Significant Subsidiary, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Note Guarantee and default continues for ten days
after receipt of the notice specified in this Indenture;




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




     (A) commences a voluntary case,




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




     (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




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




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




     (A) is for relief against the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary in an
involuntary case;



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     (B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or




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




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



Section 6.02 Acceleration.




     In the case of an Event of Default specified in clause (10) or (11) of Section 6.01 hereof,
with respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable immediately without
further action or notice. If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare
all the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become
due and payable immediately. The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders of all the
Notes, rescind an acceleration or waive any existing Default or Event of Default and its
consequences under this Indenture, if the rescission would not conflict with any judgment or
decree, except a continuing Default or Event of Default in the payment of principal of, premium on,
if any, or interest on, the Notes.



Section 6.03 Other Remedies.




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



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



Section 6.04 Waiver of Past Defaults.




     The Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of principal of, premium on, if any, or interest on, the Notes
(including in connection with an offer to purchase); provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration
and its consequences, including any related payment default that resulted from such acceleration,
if the rescission would not conflict with any judgment or decree. 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




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Indenture; but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.




Section 6.05 Control by Majority.




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



Section 6.06 Limitation on Suits.




     In case an Event of Default occurs and is continuing, the Trustee will be under no obligation
to exercise any of the rights or powers under this Indenture at the request of any Holders of Notes
unless such Holders have offered to the Trustee security or indemnity satisfactory to it against
any loss, liability or expense. Except to enforce the right to receive payment of principal of,
premium on, if any, or interest on when due, no Holder of a Note may pursue any remedy with respect
to this Indenture or the Notes unless:




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




     (2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes
make a written request the Trustee to pursue the remedy;




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




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




     (5) during such 60 day period, Holders of a majority in aggregate principal amount of
the then outstanding Notes do not give the Trustee a direction inconsistent with such
request.



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



Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, premium on, if any, and interest on, the Note, on or after the
respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.



Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium on, if any, and interest
remaining unpaid on, the



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Notes and interest on overdue principal and, to the extent lawful, interest and such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.




Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.06 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.06 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.



Section 6.10 Priorities.




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




     First: to the Trustee, its agents and attorneys for amounts due under Section 7.06
hereof, including payment of all compensation, expenses and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any and
interest, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
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 a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its



74









 




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 by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in aggregate principal amount of the then outstanding Notes.




ARTICLE 7.

TRUSTEE




Section 7.01 Duties of Trustee.




     (a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.



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




     (1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and




     (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. However, in the case of certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture.



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




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




     (2) the Trustee will 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; and




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



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



     (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security or indemnity satisfactory to it against any loss, liability or expense.



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



Section 7.02 Rights of Trustee.




     (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



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



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



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



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



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



     (h) 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;



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



     (j) 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.



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Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Section 7.09 hereof.



Section 7.04 Trustee’s Disclaimer.




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



Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs, or, if such Default or Event of Default becomes known to the Trustee after 90
days following the occurrence of such Default or Event of Default, promptly after a Responsible
Officer of the Trustee has knowledge of the occurrence of such Default or Event of Default. Except
in the case of a Default or Event of Default in payment of principal of, premium on, if any, or
interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in the interests of
the Holders of the Notes.



Section 7.06 Compensation and Indemnity.




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



     (b) The Company and the Guarantors, jointly and severally, will indemnify the Trustee against
any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company and the Guarantors (including
this Section 7.06) and defending itself against any claim (whether asserted by the Company, the
Guarantors any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The
Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense.
The Trustee may have separate counsel and the Company will pay the



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reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay
for any settlement made without its consent, which consent will not be unreasonably withheld.




     (c) The obligations of the Company and the Guarantors under this Section 7.06 will survive the
satisfaction and discharge of this Indenture.



     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section 7.06, the
Trustee will have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal of, premium on, if any, and interest on,
particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01 (10) or (11) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



Section 7.07 Replacement of Trustee.




     (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.07.



     (b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:




     (1) the Trustee fails to comply with Section 7.09 hereof;




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




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




     (4) the Trustee becomes incapable of acting.



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



     (d) 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 10% in
aggregate principal amount of the then outstanding Notes may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor Trustee.



     (e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.09 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become



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effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.06 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.07, the Company’s obligations under Section 7.06 hereof will continue for the
benefit of the retiring Trustee.




Section 7.08 Successor Trustee by Merger, etc.




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



Section 7.09 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.



ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, and at any time, elect to have either Section 8.02 or 8.03 hereof be
applied to all outstanding Notes and all obligations of the Guarantors discharged with respect to
their Note Guarantees upon compliance with the conditions set forth below in this Article 8.



Section 8.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance
means that the Company and the Guarantors will be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will
thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all
their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which will survive until otherwise terminated or
discharged hereunder:




     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium on, if any, or interest on, such Notes when such payments are due from
the trust referred to in Section 8.04 hereof;



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     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Guarantors’ obligations in connection therewith; and




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.



Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from each of their obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and 4.19
hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and after the
date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant
Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but will continue to be deemed “outstanding” for all other
purposes hereunder (it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and
will have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such
Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(9)
hereof will not constitute Events of Default.



Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants, to pay the principal of, premium on, if any,
and interest on, the outstanding Notes on the stated date for payment thereof or on the
applicable Redemption Date, as the case may be, and the Company must specify whether the
Notes are being defeased to such stated date for payment or to a particular Redemption Date;




     (2) in the case of an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:



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     (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling; or




     (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes 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 and at
the same times as would have been the case if such Legal Defeasance had not
occurred;




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming 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;




     (4) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit (and any similar concurrent deposit relating to other
Indebtedness) and the granting of Liens to secure such borrowings) and the deposit will not
result in a breach or violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company or any Guarantor is
bound;




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture and the agreements governing any other Indebtedness being defeased,
discharged or replaced) to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;




     (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others;




     (7) if the Notes are to be redeemed prior to their Stated Maturity, the Company must
deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified
Redemption Date; and




     (8) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.



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




     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes will be



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held in trust and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.




     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.



Section 8.06 Repayment to Company.




     Subject to applicable law, any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium on, if any, or interest
on, any Note and remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on its request or (if then held by
the Company) will be discharged from such trust; and the Holder of such Note will thereafter be
permitted to look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as Trustee thereof,
will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in the New York Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which will not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.



Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’ obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case
may be; provided, however, that, if the Company makes any payment of principal of, premium on, if
any, or interest on, any Note following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.



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ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




     Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement
or the Security Documents without the consent of any Holder of a Note:




     (1) to cure any ambiguity, defect or inconsistency;




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




     (3) to provide for the assumption of the Company’s or a Guarantor’s obligations to the
Holders of the Notes and Note Guarantees in the case of a merger or consolidation or sale of
all or substantially all of the Company’s or such Guarantor’s assets, as applicable;




     (4) to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights hereunder of any
such Holder;




     (5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;




     (6) to conform the text of this Indenture, the Notes, the Note Guarantees, the
Intercreditor Agreement or the Security Documents to any provision of the “Description of
Notes” section of the Offering Circular to the extent that such provision in that
“Description of Notes” was intended to be a verbatim recitation of a provision of this
Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the Security
Documents, which intent shall be evidenced by an Officers’ Certificate to that effect;




     (7) to add a Guarantor or to provide for the Guarantee of the Company’s Obligations
under the Notes by Parent or any direct or indirect parent company of the Company;




     (8) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the date hereof;




     (9) to make, complete or confirm any grant of Collateral permitted or required by this
Indenture, the Intercreditor Agreement or any of the Security Documents or any release,
termination or discharge of Collateral that becomes effective as set forth in this
Indenture, the Intercreditor Agreement or any of the Security Documents; or




     (10) to grant any Lien for the benefit of the Holders of the Notes.



     In addition, the Collateral Trustee and the Trustee shall be authorized to amend the Security
Documents to add additional secured parties to the extent Liens securing obligations held by such
parties are permitted under this Indenture and that after so securing any such additional secured
parties, the amount of Shared Lien Debt does not cause the Consolidated Shared Lien Debt Ratio to
exceed 3.50 to 1.00, calculated after giving pro forma effect to such incurrence and the
application of the net proceeds therefrom, as certified by the Company.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
in the execution of any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained,



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but the Trustee will not be obligated to enter into such amended or supplemental indenture
that affects its own rights, duties or immunities under this Indenture or otherwise.




Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture (including, without limitation, Sections 3.09, 4.10 and 4.15 hereof), the
Notes and the Note Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if
any) voting as a single class (including, without limitation, consents obtained in connection with
a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and
6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in
the payment of the principal of, premium on, if any, or interest on, the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance with any provision of
this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any), voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.



     It is not necessary for the consent of the Holders of Notes under this Indenture to approve
the particular form of any proposed amendment or waiver, but it is sufficient if such consent
approves the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective (including
any amendment, supplement or waiver pursuant to the last paragraph of this Section 9.02), the
Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or document or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with any provision of
this Indenture, the Notes or the Note Guarantees. However, without the consent of each Holder
affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any
Notes held by a non-consenting Holder):




     (1) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;




     (2) reduce the principal of or change the fixed maturity of any Note or alter or waive
any of the provisions with respect to the redemption of the Notes (other than as provided
above with respect to Sections 3.09, 4.10 and 4.15 hereof);



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     (3) reduce the rate of or change the time for payment of interest, including default
interest, on any Note;




     (4) waive a Default or Event of Default in the payment of principal of, premium on, if
any, or interest on, the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such acceleration);




     (5) make any Note payable in money other than that stated in the Notes;




     (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of, premium on,
if any, or interest on, the Notes;




     (7) waive a redemption payment with respect to any Note (other than a payment required
by Sections 3.09, 4.10 or 4.15 hereof);




     (8) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture; or




     (9) make any change in the foregoing amendment and waiver provisions.



     In addition, subject to the immediately following sentence, the Intercreditor Agreement and
the Security Documents may only be amended, waived or supplemented with the consent of the Holders
of at least a majority in aggregate principal amount of the Notes (including, without limitation,
Additional Notes, if any) voting as a single class (but only to the extent any such consent is
required under the Collateral Trust Agreement or the Intercreditor Agreement). Notwithstanding any
other provision of this Indenture, any amendment to, or waiver of, the provisions of this
Indenture, the Intercreditor Agreement or any Security Document that has the effect of releasing
all or substantially all of the Collateral from the Liens securing the Notes will require the
consent of the Holders of at least 662⁄3% in aggregate principal amount of the Notes then outstanding
(including, without limitation, Additional Notes, if any) voting as a single class (but only to
the extent any such consent is required under the Collateral Trust Agreement or the Intercreditor
Agreement).



Section 9.03 Revocation and Effect of Consents.




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



Section 9.04 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



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     Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.



Section 9.05 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be provided with and (subject to Section 7.01 hereof) will be fully
protected in relying upon, in addition to the documents required by Section 13.02 hereof, an
Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture by the Trustee and the Company is authorized or permitted by this Indenture.



ARTICLE 10.

NOTE GUARANTEES




Section 10.01 Guarantee.




     (a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium on, if any, and interest on, the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of, premium on, if any, and interest on, the Notes if
lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and this Indenture.



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



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) 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) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.



Section 10.02 Limitation on Guarantor Liability.




     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in
the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.



Section 10.03 Execution and Delivery of Note Guarantee.




     To evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees
that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will
be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee
and that this Indenture will be executed on behalf of such Guarantor by one of its Officers.



     Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 hereof will
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.



     If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee will be valid nevertheless.



     The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.



     In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Domestic Subsidiary after the date of this Indenture, if required by Section 4.16 hereof, the
Company will



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cause such Domestic Subsidiary to comply with the provisions of Section 4.16 hereof and this
Article 10, to the extent applicable.




Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.




     Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:




     (1) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




     (2) either:




     (A) subject to Section 10.05 hereof, the Person acquiring the property in any
such sale or disposition or the Person formed by or surviving any such
consolidation or merger unconditionally assumes all the obligations of that
Guarantor under this Indenture, its Note Guarantee and the Security Documents
pursuant to a supplemental indenture and appropriate Security Documents on the
terms set forth herein or therein; and




     (B) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without
limitation, Section 4.10 hereof.



     In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person (by supplemental indenture, executed and delivered to the Trustee) of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed
to and be substituted for the Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in
all respects have the same legal rank and benefit under this Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture as though all of
such Note Guarantees had been issued at the date of the execution hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(A) and 2(B)
above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.



Section 10.05 Releases.




     (a) In the event of any sale or other disposition of all or substantially all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all
of the Capital Stock of any Guarantor, in each case to a Person that is not (either before or after
giving effect to such transactions) the Company or a Restricted Subsidiary of the Company, then
such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any



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obligations under its Note Guarantee; provided that (i) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this Indenture, including
without limitation Section 4.10 hereof and (ii) such Guarantor ceases to be a Restricted Subsidiary
of the Company as a result of the sale or other disposition. Upon delivery by the Company to the
Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that (i) such sale or
other disposition was made by the Company in accordance with the provisions of this Indenture,
including without limitation Section 4.10 hereof and (ii) that such Guarantor has ceased to be a
Restricted Subsidiary of the Company as a result of such sale or other disposition, the Trustee
will execute any documents reasonably required in order to evidence the release of such Guarantor
from its obligations under its Note Guarantee.




     (b) Upon designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in accordance with the terms of this Indenture, such Guarantor will be released and
relieved of any obligations under its Note Guarantee.



     (c) Upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 11 hereof, each Guarantor
will be released and relieved of any obligations under its Note Guarantee.



     Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 10.05 will remain liable for the full amount of principal of, premium on, if any, and
interest on, the Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.



ARTICLE 11.

SATISFACTION AND DISCHARGE




Section 11.01 Satisfaction and Discharge.




     This Indenture will be discharged and will cease to be of further effect as to all Notes and
the Note Guarantees issued hereunder, when:




     (1) either:




          (a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has been deposited in trust and
thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or




          (b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable, or will become due and payable within one year, by reason of providing for
the mailing of a notice of redemption or otherwise and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and non-callable Government Securities,
in amounts as will be sufficient, without consideration of any reinvestment of interest, to
pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption;




     (2) in respect of subclause (b) of clause (1) of this Section 11.01, no Default or
Event of Default has occurred and is continuing on the date of the deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied to such
deposit and any similar deposit relating to other Indebtedness and, in each case, the
granting of Liens to secure such



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borrowings) and the deposit will not result in a breach or violation of, or constitute
a default under, any other instrument to which the Company or any Guarantor is a party or by
which the Company or any Guarantor is bound (other than with respect to the borrowing of
funds to be applied concurrently to make the deposit required to effect such satisfaction
and discharge and any similar concurrent deposit relating to other Indebtedness, and in each
case the granting of Liens to secure such borrowings);




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




     (4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
Redemption Date, as the case may be.


In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of
Sections 11.02 and 8.06 will survive such satisfaction and discharge. In addition, nothing in this
Section 11.01 will be deemed to discharge those provisions of Section 7.06 hereof, that, by their
terms, survive the satisfaction and discharge of this Indenture.



Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such
money has been deposited with the Trustee; but such money need not be segregated from other funds
except to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided that if the Company has made any payment of principal of, premium on, if any, or interest
on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Notes to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent.



ARTICLE 12.

COLLATERAL AND SECURITY




Section 12.01 Security Interest.




     The due and punctual payment of the principal of, premium on, if any, and interest on, the
Notes when and as the same shall be due and payable, whether on an interest payment date, at
maturity, by acceleration, repurchase, redemption, prepayment, demand or otherwise, and interest on
the overdue principal of, premium on, if any, or interest on, the Notes and performance of all
other obligations of the



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Company and the Guarantors to the Holders of Notes or the Trustee and the Notes (including, without
limitation, the Note Guarantees), according to the terms hereunder or thereunder, are secured as
provided in the Security Documents.




     Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of the
Security Documents (including, without limitation, the provisions providing for foreclosure and
release of Collateral and entry into the Intercreditor Agreement) as the same may be in effect or
may be amended or otherwise modified from time to time in accordance with their terms and
authorizes and appoints Wilmington Trust FSB as the Trustee and as the Collateral Trustee, and
authorizes and directs the Trustee to enter into the Collateral Trust Agreement and to perform its
obligations and exercise its rights thereunder in accordance therewith and the authorizes and
directs the Collateral Trustee to enter into the Security Documents and to perform its obligations
and exercise its rights thereunder in accordance therewith.



     The Company and each of the Guarantors consents and agrees to be bound by the terms of the
Security Documents, as the same may be in effect from time to time, and agrees to perform its
obligations thereunder in accordance therewith. The Company will deliver to the Trustee copies of
all documents delivered to the Collateral Trustee pursuant to the Security Documents, and will 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 to the Collateral Trustee the security interest in the Collateral
contemplated 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.



     The Company will take, and will cause its Subsidiaries to take, any and all actions reasonably
required to cause the Security Documents to create and maintain, as security for the Shared Lien
Obligations, a valid and enforceable perfected security interest and continuing Lien in and on all
of the Collateral in favor of the Collateral Trustee for the benefit of the Trustee, the Holders of
Notes and the holders of other Shared Lien Obligations, to the extent required by, and with the
Lien priority required under, the Shared Lien Documents.



Section 12.02 Intercreditor Agreement.




     At any time when the Intercreditor Agreement is in effect, this Article Twelve and the
provisions of each Security Document shall be subject to the terms, conditions and benefits set
forth in the Intercreditor Agreement. The Company and each Guarantor consents to, and agrees to be
bound by, the terms of the Intercreditor Agreement, as the same may be in effect from time to time,
and to perform its obligations thereunder in accordance with the terms therewith.



Section 12.03 Collateral Trust Agreement.




     This Article Twelve and the provisions of each Security Document are subject to the terms,
conditions and benefits set forth in the Collateral Trust Agreement. The Company and each
Guarantor consents to, and agrees to be bound by, the terms of the Collateral Trust Agreement, as
the same may be in effect from time to time, and to perform its obligations thereunder in
accordance with the terms therewith.



Section 12.04 Equal and Ratable Sharing of Collateral by Holders of Shared Lien Debt.




     Notwithstanding: (1) anything to the contrary contained in the Security Documents; (2) the
time of incurrence of any Series of Shared Lien Debt; (3) the order or method of attachment or
perfection of any Liens securing any Series of Shared Lien Debt; (4) the time or order of filing or
recording of



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financing statements or other documents filed or recorded to perfect any Liens securing any
Series of Shared Lien Debt; (5) the time of taking possession or control over any Liens securing
any Series of Shared Lien Debt; (6) that any Shared Lien may not have been perfected or may be or
have become subordinated, by equitable subordination or otherwise, to any other Lien; or (7) the
rules for determining priority under any law governing relative priorities of Liens, all Shared
Liens granted at any time by the Company or any Guarantor will secure, equally and ratably, all
present and future Shared Lien Obligations.




     The foregoing provision is intended for the benefit of, and will be enforceable by, each
present and future holder of Shared Lien Obligations, each present and future Shared Lien
Representative and the Collateral Trustee, as holder of Shared Liens, in each case, as a third
party beneficiary. All future Shared Lien Obligations shall be pari passu in right of payment with
the Notes, shall be guaranteed on a pari passu basis by each Guarantor and shall be secured equally
and ratably with the Notes by Liens on the Collateral granted under the Security Documents for as
long as the Notes and the Guarantees are secured by the Collateral, subject to this Indenture. All
Indebtedness in respect of future Shared Lien Obligations shall only be permitted to be incurred
and secured by the Collateral if such Indebtedness and the related Liens are permitted to be
incurred under Sections 4.09 and 4.12 hereof and if such Indebtedness is properly designated by the
Company, in an Officers’ Certificate delivered to the Trustee and the Collateral Trustee, as
“Shared Lien Debt” in accordance with the definition of Shared Lien Debt and the applicable
provisions of the Collateral Trust Agreement.



Section 12.05 Release of Liens in Respect of Notes.




     The Collateral Trustee’s Liens upon the Collateral shall no longer secure the Notes
outstanding under this Indenture or any other Obligations under this Indenture, and the right of
the Holders of the Notes and such Obligations to the benefits and proceeds of the Collateral
Trustee’s Liens on the Collateral shall terminate and be discharged:



     (a) upon satisfaction and discharge of this Indenture as set forth under Article 11 hereof;



     (b) upon a Legal Defeasance or Covenant Defeasance of all outstanding Notes as set forth under
Article 8 hereof;



     (c) upon payment in full and discharge of all Notes outstanding under this Indenture and all
Obligations that are outstanding, due and payable under this Indenture at the time the Notes are
paid in full and discharged;



     (d) in whole or in part, with the consent of the Holders of the requisite percentage of Notes
in accordance with Article 9 hereof; or



     (e) if and to the extent required by the provisions of the Intercreditor Agreement.



Section 12.06 Relative Rights.




     Nothing in the Note Documents or the Intercreditor Agreement shall:



     (a) impair, as between the Company and the Holders of the Notes, the obligation of the Company
to pay principal, premium on, if any, or interest on, the Notes in accordance with their terms or
any other obligation of the Company or any Guarantor under the Note Documents;



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     (b) affect the relative rights of Holders of Notes as against any other creditors of the
Company or any Guarantor (other than Liens securing Priority Lien Obligations or other Shared
Liens);



     (c) restrict the right of any holder of Notes to sue for payments that are then due and owing
(but not the right to enforce any judgment in respect thereof against any Collateral to the extent
specifically prohibited by Section 3.1 or Section 6.1 of the Intercreditor Agreement (if then in
effect) or Section 3.3 of the Collateral Trust Agreement);



     (d) restrict or prevent any holder of Notes or other Shared Lien Obligations, the Collateral
Trustee or any other person from exercising any of its rights or remedies upon a Default or Event
of Default not specifically restricted or prohibited by Section 3.1 or Section 6.1 of the
Intercreditor Agreement (if then in effect) or Section 3.3 of the Collateral Trust Agreement; or



     (e) restrict or prevent any holder of Notes or other Shared Lien Obligations, the Trustee, the
Collateral Trustee or any other person from taking any lawful action in an Insolvency or
Liquidation Proceeding not specifically restricted or prohibited by Section 6.1 of the
Intercreditor Agreement (if then in effect) or Section 3.3 of the Collateral Trust Agreement.



Section 12.07 Collateral Trustee.




     (a) The Company has appointed Wilmington Trust FSB to serve as the Collateral Trustee for the
benefit of the holders of:




     (1) the Notes; and




     (2) all other Shared Lien Obligations outstanding from time to time.



     (b) The Collateral Trustee (directly or through co-trustees, agents or sub-agents) will hold,
and will be entitled to enforce on behalf of the holders of Shared Lien Obligations, all Liens on
the Collateral created by the Security Documents for their benefit, subject to the provisions of
the Intercreditor Agreement (if then in effect).



     (c) Except as provided in the Collateral Trust Agreement or as directed by an Act of Required
Debtholders in accordance with the Collateral Trust Agreement, the Collateral Trustee will not be
obligated:




     (1) to act upon directions purported to be delivered to it by any Person;




     (2) to foreclose upon or otherwise enforce any Lien; or




     (3) to take any other action whatsoever with regard to any or all of the Security
Documents, the Liens created thereby or the Collateral.



     (d) Each Holder hereby authorizes and directs the Trustee and Collateral Trustee to act
pursuant to the Security Documents, and to enter into such documents, instruments and agreements
(in recordable form, if requested), and to take such further actions, as may be necessary or as the
Priority Lien Collateral Agent (if any) may reasonably request to effectuate the terms of, and the
Lien priorities contemplated by, the Collateral Trust Agreement and the Intercreditor Agreement.



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Section 12.08 Further Assurances; Insurance.




     (a) The Company and each of the Guarantors will use commercially reasonable efforts to perfect
on the date hereof the security interests in the Collateral for the benefit of the Holders of
Notes, but to the extent any such security interest cannot be perfected by such date, the Company
and the Guarantors shall have all security interests perfected, to the extent required by the
Security Documents, promptly following the date hereof, but in any event shall do, or cause to be
done, all such acts and things as may be necessary or proper to have all such security interests
perfected no later than 30 days after the date hereof. The Company and each of the Guarantors will
deliver an Officers’ Certificate to the Trustee and the Collateral Trustee confirming that all of
the security interests have been perfected, not later than 30 days after the date hereof.



     (b) The Company and each of the Guarantors shall do or cause to be done all acts and things
that may be reasonably required, or that the Collateral Trustee from time to time may reasonably
request, to assure and confirm that the Collateral Trustee holds, for the benefit of the holders of
Shared Lien Obligations, duly created and enforceable and perfected Liens upon the Collateral
(including any real, personal or mixed property or assets that are acquired or otherwise become
Collateral after the Notes are issued), in each case, if and to the extent required by, and with
the Lien priority required under, the Shared Lien Documents.



     (c) Upon the reasonable request of the Collateral Trustee or any Shared Lien Representative at
any time and from time to time, the Company and each of the Guarantors will promptly execute,
acknowledge and deliver such Security Documents, instruments, certificates, notices and other
documents, and take such other actions as may be reasonably required, or that the Collateral
Trustee may reasonably request, to create, perfect, protect, assure or enforce the Liens and
benefits intended to be conferred, in each case as contemplated by the Shared Lien Documents for
the benefit of the holders of Shared Lien Obligations.



     (d) The Company and the Guarantors shall:




     (1) keep their properties adequately insured at all times by financially sound and
reputable insurers;




     (2) maintain such other insurance, to such extent and against such risks (and with such
deductibles, retentions and exclusions), including fire and other risks insured against by
extended coverage, as is customary with companies in the same or similar businesses
operating in the same or similar locations, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by them;




     (3) maintain such other insurance as may be required by law;




     (4) maintain title insurance on all real property Collateral (if any) insuring the
Collateral Trustee’s Lien on such Collateral, subject only to Permitted Liens, except as may
be otherwise permitted by the Security Documents; and




     (5) maintain such other insurance as may be required by the Security Documents.



     (e) The Company and the Guarantors will furnish to the Collateral Trustee an insurance
certificate as to their property and liability insurance carriers. The Company will be required to
provide at least 30 days’ notice of cancellation or material change, on all property and casualty
insurance policies of the Company and the Guarantors. The Collateral Trustee will be named as an
additional insured, or will



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be named as loss payee as its interests may appear, on all insurance policies of the Company
and the Guarantors.




ARTICLE 13.

MISCELLANEOUS




Section 13.01 Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or by first class mail (registered or certified, return
receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery,
to the others’ address:



If to the Company and/or any Guarantor:



Viasystems, Inc.

101 South Hanley Road

St. Louis, Missouri, 63105

Facsimile No.: (314) 727-2087

Attention: General Counsel



With a copy to:

Weil, Gotshal & Manges LLP

200 Crescent Court, Suite 300

Dallas, Texas, 75201

Facsimile No.: (214) 746-7700

Attention: Scott Cohen, Esq.



If to the Trustee:

Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437

Facsimile No.: (203) 453-1183

Attention: Joseph P. O’Donnell



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



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Failure to mail a notice or communication
to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



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     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.



     Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any
Note provides for notice of any event (including any notice of redemption) to a Holder of a Global
Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the
Depositary for such Note (or its designee) pursuant to Applicable Procedures.



Section 13.02 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.03 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) except upon the initial issuance of Notes, an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.



Section 13.03 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture must 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, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



Section 13.04 Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 13.05 No Personal Liability of Directors, Officers, Employees and Stockholders.




     No past, present or future director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations of the Company or
the Guarantors under the Note Documents, or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases
all such liability. The



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waiver and release are part of the consideration for issuance of the Notes. The waiver may
not be effective to waive liabilities under the federal securities laws.




Section 13.06 Governing Law.




     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE,
THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.



Section 13.07 No Adverse Interpretation of Other Agreements.




     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.



Section 13.08 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section
10.05.



Section 13.09 Severability.




     In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



Section 13.10 Counterpart Originals.




     The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.



Section 13.11 Table of Contents, Headings, etc.




     The Table of Contents and Headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part of this Indenture and
will in no way modify or restrict any of the terms or provisions hereof.



[Signatures on following page]




97









 





SIGNATURES




Dated as of November 24, 2009




	 	 	 	 	 
	 	VIASYSTEMS, INC.

 	 
	 	By:  	/s/ David M. Sindelar
 	 
	 	 	Name:  	David M. Sindelar 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 	 	 	 	 
	 	 	VIASYSTEMS INTERNATIONAL, INC.
	 	 	VIASYSTEMS TECHNOLOGIES CORP., LLC
	 

	 	 	 	By:
	 	Viasystems, Inc.
	 

	 	 	 	 	 	as sole member






	 	 	 	 	 
	 	 	 
	 	By:  	     /s/ David M. Sindelar
 	 
	 	 	Name:  	David M. Sindelar 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	WILMINGTON TRUST FSB, as Trustee

 	 
	 	By:  	/s/ Joseph P. O’Donnell
 	 
	 	 	Name:  	Joseph P. O’Donnell 	 
	 	 	Title:  	Vice President 	 
	 




 











 





EXHIBIT A1




[Face of Note]

 





CUSIP/CINS                                         




12.00% Senior Secured Notes due 2015




			
	No.                     
	 	$                                        






VIASYSTEMS, INC.




promises to pay to [                                        ], or registered assigns,



the principal sum of 
                                                                              
                   
                   
     DOLLARS on January 15, 2015.



Interest Payment Dates: January 15 and July 15



Record Dates: January 1 and July 1




Dated:                                         , 20     




	 	 	 	 	 
	 	VIASYSTEMS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




This is one of the Notes referred to

in the within-mentioned Indenture:



	 	 	 	 
	WILMINGTON TRUST FSB,

as Trustee

 	 
	By:  	 	 
	 	Authorized Signatory 	 
	 	 	 
	 


THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO
THE ISSUER AT THE FOLLOWING ADDRESS: VIASYSTEMS, INC., 101 SOUTH HANLEY ROAD, ST. LOUIS, MISSOURI,
63105, ATTENTION: CHIEF FINANCIAL OFFICER.



 




A1-1









 







[Back of Note]

12.00% Senior Secured Notes due 2015




[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]




[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]





     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




     (1) Interest. Viasystems, Inc., a Delaware corporation (the
“Company”), promises to pay interest on the principal amount of this Note at 12.00% per
annum from                                         ,                      until maturity. The Company will pay interest semi-annually
in arrears on January 15th and July 15th of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment
Date”). Interest on the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further that the first Interest Payment Date shall be                                         ,                     .
Interest will be computed on the basis of a 360-day year of twelve 30-day months.




     (2) Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes at the close
of business on the January 1 or July 1 next preceding the Interest Payment Date, even if
such Notes are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of immediately available funds
will be required with respect to principal of, premium on, if any, and interest on, all
Global Notes and all other Notes the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, Wilmington Trust FSB, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without prior notice to the Holders of the Notes. The Company
or any of its Subsidiaries may act in any such capacity.




     (4) Indenture. The Company issued the Notes under an Indenture,
dated as of November 24, 2009 (the “Indenture”), among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture, and Holders are
referred to the Indenture for a statement of such terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are secured obligations of the
Company.




     (5) Optional Redemption.



A1-2









 






          (a) Except as set forth in subparagraph (b) or (c) of this Paragraph 5, the Company
will not have the option to redeem the Notes prior to July 15, 2012. On or after July 15,
2012, the Company may redeem all or a part of the Notes upon not less than 30 nor more than
60 days’ prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to
the applicable Redemption Date, if redeemed during the twelve-month period beginning on July
15 of the years indicated below, subject to the rights of Holders of Notes on the relevant
record date to receive interest on the relevant Interest Payment Date:



	 	 	 	 	 
	Year	 	Percentage	 
	2012
	 	 	106.000	%
	2013
	 	 	103.000	%
	2014 and thereafter
	 	 	100.000	%







          (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
prior to July 15, 2012, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under the Indenture, upon not less than 30 nor
more than 60 days’ prior notice, at a redemption price equal to 112.000% of the principal
amount of the Notes redeemed, plus accrued and unpaid interest if any, to the Redemption
Date, subject to the rights of Holders of Notes on the relevant record date to receive
interest on the relevant Interest Payment Date, with the net cash proceeds of one or more
Equity Offerings of the Company or a contribution to the Company’s common equity capital
made with the net cash proceeds of a concurrent Equity Offering of Parent or any direct or
indirect parent company of the Company; provided that: (1) at least 65% of the aggregate
principal amount of Notes originally issued under the Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and (2) the redemption occurs within 180 days of the date of the closing of such
Equity Offering.




          (c) At any time prior to July 15, 2012, the Company may also redeem all or a part of
the Notes, upon not less than 30 nor more than 60 days’ prior notice, at a redemption price
equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as
of, and accrued and unpaid interest, if any, to the Redemption Date, subject to the rights
of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date.




     (6) Mandatory Redemption.



     The Company is not required to make mandatory redemption payments or sinking fund payments
with respect to the Notes.




     (7) Repurchase at the Option of Holder.




          (a) If there is a Change of Control, the Company will be required to make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (provided that no
Notes of $2,000 or less can be redeemed in part) of each Holder’s Notes at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date (the “Change of Control Payment”). Within 30 days following any Change
of Control, the Company will mail



A1-3









 






a notice to each Holder setting forth the procedures governing the Change of Control
Offer as required by the Indenture.




          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within 30 days after any time the aggregate amount of Excess Proceeds exceeds $25
million, the Company will commence an offer to all Holders of Notes and all holders of other
Shared Lien Debt containing provisions similar to those set forth in the Indenture with
respect to offers to purchase, prepay or redeem with the proceeds of sales of assets (an
“Asset Sale Offer”) in accordance with Section 3.09 of the Indenture to purchase, prepay or
redeem the maximum principal amount of Notes and other Shared Lien Debt (plus all accrued
interest on the Indebtedness and the amount of all fees and expenses, including premiums,
incurred in connection therewith) that may be purchased, prepaid or redeemed out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be cash in an amount equal to
100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the date fixed for the closing of such offer, in accordance with the procedures set forth in
the Indenture. To the extent that the aggregate amount of Notes and other Shared Lien Debt
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or
such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and other Shared
Lien Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset
Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Notes and
other Shared Lien Debt to be purchased on a pro rata basis, based on the amounts tendered or
required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds will be reset at zero. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled “Option of
Holder to Elect Purchase” attached to the Notes.




     (8) Notice of Redemption. At least 30 days but not more than 60 days
before a Redemption Date, the Company will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior to a
Redemption Date if the notice is issued in connection with a defeasance of the Notes or a
satisfaction or discharge of the Indenture pursuant to Articles 8 or 11 thereof. Notes and
portions of Notes selected will be in amounts of $2,000 or integral multiples of $1,000 in
excess of $2,000, provided that if all of the Notes of a Holder are to be redeemed or
purchase, the entire outstanding amount of Notes held by such Holder shall be redeemed or
purchased.




     (9) Denominations, Transfer, Exchange. The Notes are in registered
form in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed, during the period between a record date and the next
succeeding Interest Payment Date or any Notes tendered and not withdrawn in connection with
a Change of Control Offer or an Asset Sale Offer.



A1-4









 






     (10) Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes. Only registered Holders have rights under the
Indenture.




     (11) Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Note Guarantees or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing Default or Event of
Default compliance with any provision of the Indenture, the Note Guarantees or the Notes may
be waived with the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including, without limitation, Additional Notes, if any), voting as
a single class (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes). Without the consent of any
Holder of a Note, the Indenture, the Note Guarantees, the Notes, the Intercreditor Agreement
or the Security Documents may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s
obligations to the Holders of the Notes and Note Guarantees in the case of a merger or
consolidation or sale of all or substantially all of the Company’s or such Guarantor’s
assets, as applicable, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal rights of
any such Holder under the Indenture, to comply with requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA, to conform the text of
the Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the Security
Documents to any provision of the “Description of Notes” section of the Offering Circular to
the extent that such provision in that “Description of Notes” was intended to be a verbatim
recitation of a provision of the Indenture, the Notes, the Note Guarantees, the
Intercreditor Agreement or the Security Documents, which intent shall be evidenced by an
Officers’ Certificate to that effect, to add a Guarantor or to provide for the Guarantee of
the Company’s Obligations under the Notes by Parent or any direct or indirect parent company
of the Company, to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture as of the date hereof, to make, complete or confirm
any grant of Collateral permitted or required by the Indenture, the Intercreditor Agreement
or any of the Security Documents or any release, termination or discharge of Collateral that
becomes effective as set forth in the Indenture, the Intercreditor Agreement or any of the
Security Documents or to grant any Lien for the benefit of the Holders of the Notes.




     (12) Defaults and Remedies. The following are Events of Default:
(i) the Company defaults for 30 days in the payment when due of interest on the Notes; (ii)
the Company defaults in the payment when due (at maturity, upon redemption or otherwise) of
the principal of, or premium, if any, on, the Notes; (iii) the Company or any of its
Restricted Subsidiaries fails to comply with the provisions of Section 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days
after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class to comply with the
provisions in Section 4.10 or Section 4.15 of the Indenture; (v) failure by the Company or
any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of the other agreements in the Indenture; (vi)
default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company,
any of its Significant Subsidiaries or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary (or the payment of which



A1-5









 






is guaranteed by the Company or any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary), whether such Indebtedness or Guarantee now exists, or is created after the date
of the Indenture, if that default: (A) is caused by a failure to pay when due (at maturity,
upon redemption or otherwise) the principal of, such Indebtedness on the date of such
default (a “Payment Default”); or (B) results in the acceleration of such Indebtedness prior
to its express maturity, and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates $25.0 million
or more; (vii) failure by the Company, any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $25.0 million (to the extent not covered by insurance), which
judgments are not paid, discharged or stayed for a period of 60 days; (viii) the occurrence
of any of the following: (A) any Shared Lien Document is held in any judicial proceeding to
be unenforceable or invalid or ceases for any reason to be in full force and effect, other
than in accordance with the terms of the relevant Shared Lien Debt Document and the
Indenture; or (B) default by the Company or any Guarantor in the performance of any Security
Document, which adversely affects the enforceability, validity, perfection or priority of a
Shared Lien or which adversely affects the condition or value of Collateral in each case,
taken as a whole, in any material respect; or (C) except as permitted by the Indenture, any
Shared Lien purported to be granted under any Security Document on Collateral, individually
or in the aggregate, having a Fair Market Value in excess of $5.0 million ceases to be an
enforceable and perfected Lien; or (D) the Company or any Guarantor, or any Person acting on
behalf of any of them, denies or disaffirms, in writing, any obligation of the Company or
any Guarantor set forth in or arising under any Shared Lien Document; (ix) except as
permitted by the Indenture, any Note Guarantees of any Guarantor that is a Significant
Subsidiary or of any group of Guarantors that, taken together, would constitute a
Significant Subsidiary is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect, or any Guarantor that is a Significant
Subsidiary or of any group of Guarantors that, taken together, would constitute a
Significant Subsidiary, or any Person acting on behalf of any Guarantor, denies or
disaffirms its obligations under its Note Guarantee and default continues for ten days after
receipt of the notice specified in the Indenture; and (x) certain events of bankruptcy or
insolvency with respect to the Company, the Guarantors or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries that, when taken
together, would constitute a Significant Subsidiary.




     If any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will
become due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal, premium or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default in the
payment of principal of, premium on, if any, or interest on, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance with the
Indenture,




A1-6












 






and the Company is required within five Business Days of becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.




     (13) Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.




     (14) No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or any Guarantor, as such,
will have any liability for any obligations of the Company or the Guarantors under the Note
Documents, or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes.




     (15) Authentication. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.




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




     (17) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.




     (18) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



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



Viasystems, Inc.

101 South Hanley Road

St. Louis, Missouri, 63105

Attention: Investor Relations





A1-7











 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:

	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 





(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 





 





(Print or type assignee’s name, address and zip code)




	 	 	 
	and irrevocably appoint
	 	 
	 

	 	 




to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




Date:                     




Your Signature:
                                                                               

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




Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A1-8









 










Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the appropriate box below:



ŇSection 4.10       ŇSection 4.15




     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:



$                    




Date:                     




Your Signature:
                                                                                     

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




Tax Identification No.:
                                                                                





Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A1-9









 





SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



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







 




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






A1-10











 





EXHIBIT A-2

[Face of Regulation S Temporary Global Note]

 





CUSIP/CINS                     




12.00% Senior Secured Notes due 2015




	 	 	 
	No.                     

	 	$                     






VIASYSTEMS, INC.



promises to pay to CEDE & CO. or registered assigns,



the principal sum of             
           
           
           
           
           
           
           
           
           
           

           
           
               DOLLARS on January 15, 2015.



Interest Payment Dates: January 15 and July 15



Record Dates: January 1 and July 1



Dated:                     , 20                    






	 	 	 	 	 
	 	VIASYSTEMS, INC.	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


This is one of the Notes referred to



in the within-mentioned Indenture:



WILMINGTON TRUST FSB,
as Trustee




	 	 	 	 
	By:

	 	 	 
	 	 
	 	 
	Authorized Signatory
	 	 





THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT,
ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO
THE ISSUER AT THE FOLLOWING ADDRESS: VIASYSTEMS, INC., 101 SOUTH HANLEY ROAD, ST. LOUIS, MISSOURI,
63105, ATTENTION: CHIEF FINANCIAL OFFICER.



 






A2-1









 








Back of Regulation S Temporary Global Note

12.00% Senior Secured Notes due 2015



THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON



THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT


A2-2









 





AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND
OTHER JURISDICTIONS




     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




     (1) Interest. Viasystems, Inc., a Delaware corporation (the
“Company”), promises to pay interest on the principal amount of this Note at 12.00% per
annum from                     ,                      until maturity. The Company will pay interest semi-annually
in arrears on January 15th and July 15th of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment
Date”). Interest on the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further that the first Interest Payment Date shall be                     ,                     .
Interest will be computed on the basis of a 360-day year of twelve 30-day months.



     Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of interest
hereon; until so exchanged in full, this Regulation S Temporary Global Note shall in all other
respects be entitled to the same benefits as other Notes under the Indenture.




     (2) Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes at the close
of business on the January 1 or July 1 next preceding the Interest Payment Date, even if
such Notes are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of immediately available funds
will be required with respect to principal of, premium on, if any, and interest on, all
Global Notes and all other Notes the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be in such coin or
currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, Wilmington Trust FSB, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without prior notice to the Holders of the Notes. The Company
or any of its Subsidiaries may act in any such capacity.




     (4) Indenture. The Company issued the Notes under an Indenture,
dated as of November 24, 2009 (the “Indenture”), among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture, and Holders are
referred to the Indenture for a statement of such terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are secured obligations of the
Company.



A2-3









 







     (5) Optional Redemption.




          (a) Except as set forth in subparagraph (b) or (c) of this Paragraph 5, the Company
will not have the option to redeem the Notes prior to July 15, 2012. On or after July 15,
2012, the Company may redeem all or a part of the Notes upon not less than 30 nor more than
60 days’ prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to
the applicable Redemption Date, if redeemed during the twelve-month period beginning on July
15 of the years indicated below, subject to the rights of Holders of Notes on the relevant
record date to receive interest on the relevant Interest Payment Date:



	 	 	 	 	 
	Year	 	Percentage	 
	2012
	 	 	106.000	%
	2013
	 	 	103.000	%
	2014 and thereafter
	 	 	100.000	%







          (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time
prior to July 15, 2012, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under the Indenture, upon not less than 30 nor
more than 60 days’ prior notice, at a redemption price equal to 112.000% of the principal
amount of the Notes redeemed, plus accrued and unpaid interest if any, to the Redemption
Date, subject to the rights of Holders of Notes on the relevant record date to receive
interest on the relevant Interest Payment Date, with the net cash proceeds of one or more
Equity Offerings of the Company or a contribution to the Company’s common equity capital
made with the net cash proceeds of a concurrent Equity Offering of Parent or any direct or
indirect parent company of the Company; provided that: (1) at least 65% of the aggregate
principal amount of Notes originally issued under the Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and (2) the redemption occurs within 180 days of the date of the closing of such
Equity Offering.




          (c) At any time prior to July 15, 2012, the Company may also redeem all or a part of
the Notes, upon not less than 30 nor more than 60 days’ prior notice, at a redemption price
equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as
of, and accrued and unpaid interest, if any, to the Redemption Date, subject to the rights
of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date.




     (6) Mandatory Redemption.



     The Company is not required to make mandatory redemption payments or sinking fund payments
with respect to the Notes.




     (7) Repurchase at the Option of Holder.




          (a) If there is a Change of Control, the Company will be required to make an offer (a
“Change of Control Offer”) to each Holder to repurchase all or any part (provided that no
Notes of $2,000 or less can be redeemed in part) of each Holder’s Notes at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date (the “Change of Control Payment”). Within 30 days following any Change
of Control, the Company will mail



A2-4









 







a notice to each Holder setting forth the procedures governing the Change of Control
Offer as required by the Indenture.




          (b) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, within 30 days after any time the aggregate amount of Excess Proceeds exceeds $25
million, the Company will commence an offer to all Holders of Notes and all holders of other
Shared Lien Debt containing provisions similar to those set forth in the Indenture with
respect to offers to purchase, prepay or redeem with the proceeds of sales of assets (an
“Asset Sale Offer”) in accordance with Section 3.09 of the Indenture to purchase, prepay or
redeem the maximum principal amount of Notes and other Shared Lien Debt (plus all accrued
interest on the Indebtedness and the amount of all fees and expenses, including premiums,
incurred in connection therewith) that may be purchased, prepaid or redeemed out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be cash in an amount equal to
100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the date fixed for the closing of such offer, in accordance with the procedures set forth in
the Indenture. To the extent that the aggregate amount of Notes and other Shared Lien Debt
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or
such Restricted Subsidiary) may use those Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and other Shared
Lien Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset
Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Notes and
other Shared Lien Debt to be purchased on a pro rata basis, based on the amounts tendered or
required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds will be reset at zero. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled “Option of
Holder to Elect Purchase” attached to the Notes.




          (8) Notice of Redemption. At least 30 days but not more than 60 days
before a Redemption Date, the Company will mail or cause to be mailed, by first class mail,
a notice of redemption to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior to a
Redemption Date if the notice is issued in connection with a defeasance of the Notes or a
satisfaction or discharge of the Indenture pursuant to Articles 8 or 11 thereof. Notes and
portions of Notes selected will be in amounts of $2,000 or integral multiples of $1,000 in
excess of $2,000, provided that if all of the Notes of a Holder are to be redeemed or
purchase, the entire outstanding amount of Notes held by such Holder shall be redeemed or
purchased.




          (9) Denominations, Transfer, Exchange. The Notes are in registered
form in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed, during the period between a record date and the next
succeeding Interest Payment Date or any Notes tendered and not withdrawn in connection with
a Change of Control Offer or an Asset Sale Offer.




A2-5












 





     This Regulation S Temporary Global Note is exchangeable in whole or in part for one or
more Global Notes only (i) on or after the termination of the 40-day distribution compliance
period (as defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Global Notes, the
Trustee shall cancel this Regulation S Temporary Global Note.



     (10) Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes. Only registered Holders have rights under the
Indenture.



     (11) Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Note Guarantees or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing Default or Event of
Default compliance with any provision of the Indenture, the Note Guarantees or the Notes may
be waived with the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including, without limitation, Additional Notes, if any), voting as
a single class (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes). Without the consent of any
Holder of a Note, the Indenture, the Note Guarantees, the Notes, the Intercreditor Agreement
or the Security Documents may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s
obligations to the Holders of the Notes and Note Guarantees in the case of a merger or
consolidation or sale of all or substantially all of the Company’s or such Guarantor’s
assets, as applicable, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal rights of
any such Holder under the Indenture, to comply with requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA, to conform the text of
the Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the Security
Documents to any provision of the “Description of Notes” section of the Offering Circular to
the extent that such provision in that “Description of Notes” was intended to be a verbatim
recitation of a provision of the Indenture, the Notes, the Note Guarantees, the
Intercreditor Agreement or the Security Documents, which intent shall be evidenced by an
Officers’ Certificate to that effect, to add a Guarantor or to provide for the Guarantee of
the Company’s Obligations under the Notes by Parent or any direct or indirect parent company
of the Company, to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture as of the date hereof, to make, complete or confirm
any grant of Collateral permitted or required by the Indenture, the Intercreditor Agreement
or any of the Security Documents or any release, termination or discharge of Collateral that
becomes effective as set forth in the Indenture, the Intercreditor Agreement or any of the
Security Documents or to grant any Lien for the benefit of the Holders of the Notes.



     (12) Defaults and Remedies. The following are Events of Default:
(i) the Company defaults for 30 days in the payment when due of interest on the Notes; (ii)
the Company defaults in the payment when due (at maturity, upon redemption or otherwise) of
the principal of, or premium, if any, on, the Notes; (iii) the Company or any of its
Restricted Subsidiaries fails to comply with the provisions of Section 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days
after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class to comply with the
provisions in Section 4.10 or Section 4.15 of the Indenture; (v)



A2-6









 







failure by the Company or any of its Restricted Subsidiaries for 60 days after notice
to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding voting as a single class to comply with any of the other
agreements in the Indenture; (vi) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company, any of its Significant Subsidiaries or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary (or the payment of which is guaranteed by the Company or any of its Significant
Subsidiaries or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary), whether such Indebtedness or Guarantee now
exists, or is created after the date of the Indenture, if that default: (A) is caused by a
failure to pay when due (at maturity, upon redemption or otherwise) the principal of, such
Indebtedness on the date of such default (a “Payment Default”); or (B) results in the
acceleration of such Indebtedness prior to its express maturity, and, in each case, the
principal amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $25.0 million or more; (vii) failure by the Company, any of
its Significant Subsidiaries or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary to pay final judgments entered by
a court or courts of competent jurisdiction aggregating in excess of $25.0 million (to the
extent not covered by insurance), which judgments are not paid, discharged or stayed for a
period of 60 days; (viii) the occurrence of any of the following: (A) any Shared Lien
Document is held in any judicial proceeding to be unenforceable or invalid or ceases for any
reason to be in full force and effect, other than in accordance with the terms of the
relevant Shared Lien Debt Document and the Indenture; or (B) default by the Company or any
Guarantor in the performance of any Security Document, which adversely affects the
enforceability, validity, perfection or priority of a Shared Lien or which adversely affects
the condition or value of Collateral in each case, taken as a whole, in any material
respect; or (C) except as permitted by the Indenture, any Shared Lien purported to be
granted under any Security Document on Collateral, individually or in the aggregate, having
a Fair Market Value in excess of $5.0 million ceases to be an enforceable and perfected
Lien; or (D) the Company or any Guarantor, or any Person acting on behalf of any of them,
denies or disaffirms, in writing, any obligation of the Company or any Guarantor set forth
in or arising under any Shared Lien Document; (ix) except as permitted by the Indenture, any
Note Guarantees of any Guarantor that is a Significant Subsidiary or of any group of
Guarantors that, taken together, would constitute a Significant Subsidiary is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect, or any Guarantor that is a Significant Subsidiary or of any group of
Guarantors that, taken together, would constitute a Significant Subsidiary, or any Person
acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note
Guarantee and default continues for ten days after receipt of the notice specified in the
Indenture; and (x) certain events of bankruptcy or insolvency with respect to the Company,
the Guarantors or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, when taken together, would constitute a Significant
Subsidiary.



     If any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will
become due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any continuing Default



A2-7









 







or Event of Default (except a Default or Event of Default relating to the payment of
principal, premium or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the payment of principal of,
premium on, if any, or interest on, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the Company is
required within five Business Days of becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.



     (13) Trustee Dealings with Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.



     (14) No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as
such, will have any liability for any obligations of the Company or the Guarantors under the
Note Documents, or for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes.
        .



     (15) Authentication. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.



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



     (17) CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.



     (18) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



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



Viasystems, Inc.

101 South Hanley Road

St. Louis, Missouri, 63105

Attention: Investor Relations





A2-8












 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 

(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 





(Print or type assignee’s name, address and zip code)




	 	 	 
	and irrevocably appoint
	 	 
	 

	 	 





to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:	 	 
	 

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






	 	 	 	 	 
	Signature Guarantee*:
	 	 	 	 
	 

	 	 

	 	 








 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).






A2-9









 








Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.15 of the Indenture, check the appropriate box below:



ŇSection 4.10                    ŇSection 4.15




     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:



$_______________




	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:	 	 
	 

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






	 	 	 	 	 
	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	Signature Guarantee*:
	 	 	 	 
	 

	 	 

	 	 








 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).






A2-10









 








SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE




     The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note, or exchanges in part of another other Restricted Global Note for an
interest in this Regulation S Temporary Global Note, have been made:



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






A2-11









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Viasystems, Inc.

101 South Hanley Road

St. Louis, Missouri, 63105




Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437




     Re: 12.00% Senior Secured Notes due 2015



     Reference is hereby made to the Indenture, dated as of November 24, 2009 (the “Indenture”),
among Viasystems, Inc., as issuer (the “Company”), the Guarantors party thereto and Wilmington
Trust FSB, as trustee. Capitalized terms used but not defined herein shall have the meanings given
to them in the Indenture.



     _______________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $________________in such
Note[s] or interests (the “Transfer”), to _______________________________________ (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




     1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



     2. o Check if Transferee will take delivery of a beneficial interest in the
Regulation S Temporary Global Note, the Regulation S Permanent Global Note or a Restricted
Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in the United States
and (x) at the time the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in the United States,
(ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the Securities Act and (iv) if the

B-1









 







proposed transfer is being made prior to the expiration of the Restricted Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S
Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.




     3. o Check and complete if Transferee will take delivery of a beneficial interest
in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule
144A or Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):




     (a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or





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



or





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



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Notes and in the
Indenture and the Securities Act.



     4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.



     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement



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Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.




     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.



     (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	[Insert Name of Transferor]
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:
	 
	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






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ANNEX A TO CERTIFICATE OF TRANSFER





	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP ___________), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP ___________), or






	 	(b)	 	o a Restricted Definitive Note.






	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP ___________), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP ___________), or
	 
	 	(iii)	 	o Unrestricted Global Note (CUSIP ___________); or






	 	(b)	 	o a Restricted Definitive Note; or
	 
	 	(c)	 	o an Unrestricted Definitive Note,






	 	 	     in accordance with the terms of the Indenture.	 






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EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Viasystems, Inc.

101 South Hanley Road

St. Louis, Missouri, 63105




Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437




     Re: 12.00% Senior Secured Notes due 2015



(CUSIP ____________)




     Reference is hereby made to the Indenture, dated as of Viasystems, Inc. (the “Indenture”),
among Viasystems, Inc., as issuer (the “Company”), the Guarantors party thereto and Wilmington
Trust FSB, as trustee. Capitalized terms used but not defined herein shall have the meanings given
to them in the Indenture.



     ___________________, (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $_______________ in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:



     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



     (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is



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being acquired for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.




     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE]  ̈ 144A Global Note,  ̈ Regulation S Global
Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 	[Insert Name of Transferor]
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	By:	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	Name:
	 

	 	 	 	 	 	 	Title:	 
	 
	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 






C-2









 








EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Viasystems, Inc.

101 South Hanley Road

St. Louis, Missouri, 63105





Wilmington Trust FSB

246 Goose Lane, Suite 105

Guilford, Connecticut 06437




     Re: 12.00% Senior Secured Notes due 2015



     Reference is hereby made to the Indenture, dated as of November 24, 2009 (the “Indenture”),
among Viasystems, Inc., as issuer (the “Company”), the Guarantors party thereto and Wilmington
Trust FSB, as trustee. Capitalized terms used but not defined herein shall have the meanings given
to them in the Indenture.



     In connection with our proposed purchase of $ _______________ aggregate principal amount of:



     (a) o a beneficial interest in a Global Note, or



     (b) o a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a
transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.



     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies



D-1









 




with the foregoing restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.




     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 	[Insert Name of Accredited Investor]
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	By:	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	Name:	 
	 

	 	 	 	 	 	 	Title:	 
	 
	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 






D-2









 




EXHIBIT E




[FORM OF NOTATION OF GUARANTEE]




     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, dated as of November 24, 2009 (the
“Indenture”) among Viasystems, Inc., (the “Company”), the Guarantors party thereto and Wilmington
Trust FSB, as trustee (the “Trustee”), (a) the due and punctual payment of the principal of,
premium on, if any, and interest on, the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal of and interest on the
Notes, if any, if lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in
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, whether at stated maturity, by acceleration or otherwise. The
obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is
hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note,
by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the
Trustee attorney-in-fact of such Holder for such purpose.



     Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.



	 	 	 	 	 	 
	 	 	[Name of Guarantor(s)]
	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name:	 
	 

	 	 	 	Title:	 







E-1











 





EXHIBIT F




[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]




     Supplemental Indenture (this “Supplemental Indenture”), dated as of                                         ,
200___, among                                         (the “Guaranteeing Subsidiary”), a subsidiary of Viasystems, Inc.
(or its permitted successor), a Delaware corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust FSB, as trustee
under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of                     , 200___providing for the issuance of 12.00% Senior Secured
Notes due 2015 (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



     NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:



     1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.



     2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 10 thereof.



     4. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Note
Documents or this Supplemental Indenture, or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws
and it is the view of the SEC that such a waiver is against public policy.



     5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.



F-1









 





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



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



     8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



F-2









 





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



     Dated:                                         , 20___



	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Viasystems, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	WILMINGTON TRUST FSB,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 




F-3