exv4w1






Exhibit 4.1




EXECUTION COPY




 





AMERICAN AXLE & MANUFACTURING, INC.




as Issuer




THE GUARANTORS PARTY




HERETO




9.25% Senior Secured Notes due 2017




 






INDENTURE




Dated as of December 18, 2009




 






U.S. BANK NATIONAL ASSOCIATION




as Trustee




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions and Incorporation by Reference
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.1. Definitions
	 	 	1	 
	SECTION 1.2. Other Definitions
	 	 	42	 
	SECTION 1.3. Rules of Construction
	 	 	43	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Notes
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.1. Form, Dating and Terms
	 	 	44	 
	SECTION 2.2. Execution and Authentication
	 	 	50	 
	SECTION 2.3. Registrar and Paying Agent
	 	 	51	 
	SECTION 2.4. Paying Agent To Hold Money in Trust
	 	 	51	 
	SECTION 2.5. Holder Lists
	 	 	52	 
	SECTION 2.6. Transfer and Exchange
	 	 	52	 
	SECTION 2.7. Reserved
	 	 	56	 
	SECTION 2.8. Form of Certificate To Be Delivered in Connection
with Transfers Pursuant to Regulation S
	 	 	56	 
	SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	57	 
	SECTION 2.10. Outstanding Notes
	 	 	58	 
	SECTION 2.11. Temporary Notes
	 	 	58	 
	SECTION 2.12. Cancellation
	 	 	58	 
	SECTION 2.13. Payment of Interest; Defaulted Interest
	 	 	59	 
	SECTION 2.14. Computation of Interest
	 	 	60	 
	SECTION 2.15. CUSIP Numbers and ISINs
	 	 	60	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.1. Payment of Notes
	 	 	60	 
	SECTION 3.2. SEC Reports
	 	 	61	 
	SECTION 3.3. Limitation on Indebtedness
	 	 	62	 
	SECTION 3.4. Limitation on Restricted Payments
	 	 	67	 
	SECTION 3.5. Limitation on Liens
	 	 	72	 
	SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	73	 
	SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock
	 	 	75	 
	SECTION 3.8. Limitation on Affiliate Transactions
	 	 	78	 
	SECTION 3.9. Change of Control
	 	 	80	 
	SECTION 3.10. Springing Maturity Offer
	 	 	81	 






i









 






	 	 	 	 	 
	SECTION 3.11. Future Subsidiary Guarantors
	 	 	83	 
	SECTION 3.12. Limitation on Lines of Business
	 	 	83	 
	SECTION 3.13. Effectiveness of Covenants
	 	 	84	 
	SECTION 3.14. Compliance Certificate
	 	 	85	 
	SECTION 3.15. Statement by Officer as to Default
	 	 	85	 
	SECTION 3.16. Payment for Consents
	 	 	85	 
	SECTION 3.17. Further Assurances
	 	 	85	 
	SECTION 3.18. After Acquired Property
	 	 	88	 
	SECTION 3.19. Information Regarding Collateral
	 	 	88	 
	SECTION 3.20. Impairment of Security Interest
	 	 	88	 
	SECTION 3.21. Maintenance of Properties; Insurance
	 	 	89	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Successor Company and Successor Guarantor
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.1. When Company May Merge or Otherwise Dispose of Assets
	 	 	89	 
	SECTION 4.2. When Issuer May Merge or Otherwise Dispose of Assets
	 	 	90	 
	SECTION 4.3. When a Subsidiary Guarantor May Merge or Otherwise Dispose of Assets
	 	 	92	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Redemption of Notes
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.1. Optional Redemption
	 	 	93	 
	SECTION 5.2. Election to Redeem; Notice to Trustee of Optional Redemptions
	 	 	94	 
	SECTION 5.3. Selection by Trustee of Notes To Be Redeemed
	 	 	94	 
	SECTION 5.4. Notice of Redemption
	 	 	95	 
	SECTION 5.5. Deposit of Redemption Price
	 	 	96	 
	SECTION 5.6. Notes Payable on Redemption Date
	 	 	96	 
	SECTION 5.7. Notes Redeemed in Part
	 	 	96	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Defaults and Remedies
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.1. Events of Default
	 	 	97	 
	SECTION 6.2. Acceleration
	 	 	99	 
	SECTION 6.3. Other Remedies
	 	 	100	 
	SECTION 6.4. Waiver of Past Defaults
	 	 	100	 
	SECTION 6.5. Control by Majority
	 	 	100	 
	SECTION 6.6. Limitation on Suits
	 	 	100	 
	SECTION 6.7. Rights of Holders to Receive Payment
	 	 	101	 
	SECTION 6.8. Collection Suit by Trustee
	 	 	101	 
	SECTION 6.9. Trustee May File Proofs of Claim
	 	 	101	 
	SECTION 6.10. Priorities
	 	 	101	 






ii









 






	 	 	 	 	 
	SECTION 6.11. Undertaking for Costs
	 	 	102	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Trustee
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.1. Duties of Trustee
	 	 	102	 
	SECTION 7.2. Rights of Trustee
	 	 	104	 
	SECTION 7.3. Individual Rights of Trustee
	 	 	105	 
	SECTION 7.4. Disclaimer
	 	 	105	 
	SECTION 7.5. Notice of Defaults
	 	 	106	 
	SECTION 7.6. Compensation and Indemnity
	 	 	106	 
	SECTION 7.7. Replacement of Trustee
	 	 	106	 
	SECTION 7.8. Successor Trustee by Merger
	 	 	107	 
	SECTION 7.9. Eligibility; Disqualification
	 	 	108	 
	SECTION 7.10. Limitation on Duty of Trustee in Respect of Collateral
	 	 	108	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	Discharge of Indenture; Defeasance
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.1. Discharge of Liability on Notes; Defeasance
	 	 	108	 
	SECTION 8.2. Conditions to Defeasance
	 	 	110	 
	SECTION 8.3. Application of Trust Money
	 	 	111	 
	SECTION 8.4. Repayment to Issuer
	 	 	111	 
	SECTION 8.5. Indemnity for U.S. Government Obligations
	 	 	111	 
	SECTION 8.6. Reinstatement
	 	 	111	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Amendments
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.1. Without Consent of Holders
	 	 	112	 
	SECTION 9.2. With Consent of Holders
	 	 	113	 
	SECTION 9.3. Effect of Consents and Waivers
	 	 	114	 
	SECTION 9.4. Notation on or Exchange of Notes
	 	 	115	 
	SECTION 9.5. Trustee To Sign Amendments
	 	 	115	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	Note Guarantee
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.1. Note Guarantee
	 	 	115	 
	SECTION 10.2. Limitation on Liability; Termination, Release and Discharge
	 	 	117	 
	SECTION 10.3. Right of Contribution
	 	 	118	 
	SECTION 10.4. No Subrogation
	 	 	118	 






iii









 






	 	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	Collateral and Security
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.1. The Collateral
	 	 	118	 
	SECTION 11.2. Release of Liens on the Collateral
	 	 	119	 
	SECTION 11.3. Authorization of Actions To Be Taken by the Trustee Under the Collateral Documents
	 	 	121	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 12.1. Notices
	 	 	122	 
	SECTION 12.2. Certificate and Opinion as to Conditions Precedent
	 	 	123	 
	SECTION 12.3. Statements Required in Certificate or Opinion
	 	 	123	 
	SECTION 12.4. When Notes Disregarded
	 	 	123	 
	SECTION 12.5. Rules by Trustee, Paying Agent and Registrar
	 	 	124	 
	SECTION 12.6. Days Other than Business Days
	 	 	124	 
	SECTION 12.7. Governing Law
	 	 	124	 
	SECTION 12.8. Waiver of Jury Trial
	 	 	124	 
	SECTION 12.9. No Recourse Against Others
	 	 	124	 
	SECTION 12.10. Successors
	 	 	124	 
	SECTION 12.11. Multiple Originals
	 	 	124	 
	SECTION 12.12. Variable Provisions
	 	 	124	 
	SECTION 12.13. Table of Contents; Headings
	 	 	124	 
	SECTION 12.14. Direction by Holders to Enter into Collateral Documents
	 	 	125	 
	SECTION 12.15. Force Majeure
	 	 	125	 
	SECTION 12.16. USA Patriot Act
	 	 	125	 
	SECTION 12.17. First Lien Intercreditor Agreement
	 	 	125	 
	SECTION 12.18. GM Intercreditor Agreement
	 	 	125	 






Exhibits



Exhibit A Form of Note




iv









 





          INDENTURE, dated as of December 18, 2009 (this “Indenture”), among AMERICAN AXLE &
MANUFACTURING, INC., a corporation duly organized and existing under the laws of the State of
Delaware (the “Issuer”), its parent, AMERICAN AXLE & MANUFACTURING HOLDINGS, INC. (the
“Company”), certain subsidiaries of the Company from time to time parties hereto (the
“Subsidiary Guarantors” and, together with the Company, the “Guarantors”) and U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the
“Trustee”).




Recitals of the Company




          The Issuer has duly authorized the execution and delivery of this Indenture to provide for the
issuance of (i) $425,000,000 aggregate principal amount of the Issuer’s 9.25% Senior Secured Notes
due 2017, issued on the date hereof (the “Initial Notes”), and (ii) if and when issued,
additional notes having identical terms and conditions as the Initial Notes, other than issue date,
issue price, transfer restrictions and in certain circumstances, the date from which interest shall
accrue (the “Additional Notes” and, together with the Initial Notes, the “Notes”).




          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Notes:




ARTICLE I




Definitions and Incorporation by Reference




          SECTION 1.1. Definitions.




          “Account” means, collectively, (i) an “account” as such term is defined in the Uniform
Commercial Code as in effect from time to time in the State of New York or under other relevant
law, (ii) a “payment intangible” as such term is defined in the Uniform Commercial Code as in
effect from time to time in the State of New York or under other relevant law, and (iii) the
Company’s or any Subsidiary of the Company’s rights to payment for goods sold or leased or services
performed or rights to payment in respect of any monetary obligation owed to the Company or any
Subsidiary of the Company, including all such rights evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence of Indebtedness or security.




          “Acquired Indebtedness” means, with respect to any Person, Indebtedness (i) of a
Person or any of its Subsidiaries existing at the time such Person is merged with the Company or
any of its Restricted Subsidiaries or becomes a Restricted Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case whether or not Incurred by such
Person in connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition, and Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person. Acquired Indebtedness shall be deemed to have been Incurred,
with respect to clause (i) of the preceding sentence, on the date such Person is merged with the
Company or any of its Restricted Subsidiaries or becomes a Restricted Subsidiary and, with respect
to clause (ii) of the preceding sentence, on the date of consummation of such




 









 




acquisition of assets. The term “Acquired Indebtedness” does not include Indebtedness of a
Person which is redeemed, defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transactions by which such Person becomes a Restricted Subsidiary or such asset
acquisition.




          “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 the purposes of this definition, “control” when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.




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





     (1) 1.0% of the principal amount of such Note; and




     (2) the excess, if any, of (a) the present value as of such Redemption Date of (i) the
redemption price (such redemption price being described in Section 5.1) of such Note
on the First Call Date, plus (ii) all required interest payments due on such Note through
the First Call Date (excluding accrued but unpaid interest to the Redemption Date), computed
using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis
points, over (b) the then outstanding principal of such Note.



          “Asset Disposition” means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or sale and leaseback
transaction) (collectively, a “disposition”), directly or indirectly, in one or a series of related
transactions, of:





     (1) any Capital Stock of any Restricted Subsidiary;




     (2) all or substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary; or




     (3) any other properties or assets (including any disposition by written contract by
the Company or any Restricted Subsidiary to any other Person of any of their rights to
receive all or a portion of the proceeds from the sale by the Company or any Restricted
Subsidiary of any such asset or properties) of the Company or any Restricted Subsidiary
other than in the ordinary course of business.



          Notwithstanding the preceding, the following items shall not be deemed to be Asset
Dispositions:





     (1) a disposition of assets by a Restricted Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a Restricted Subsidiary;




     (2) the sale or other disposition of Cash Equivalents in the ordinary course of
business or the voluntary termination of Hedging Obligations;



2









 






     (3) a disposition of inventory in the ordinary course of business;




     (4) a disposition of used, obsolete, worn out or surplus equipment or equipment that is
no longer useful in the conduct of the business of the Company and its Restricted
Subsidiaries and that is disposed of in each case in the ordinary course of business;




     (5) the disposition of all or substantially all of the assets of the Company in a
manner permitted pursuant to Section 4.1 or any disposition that constitutes a
Change of Control pursuant to this Indenture;




     (6) an issuance of Capital Stock by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary;




     (7) for purposes of Section 3.7 only, the making of a Permitted Investment or a
disposition subject to Section 3.4;




     (8) dispositions of Capital Stock of a Restricted Subsidiary or property or other
assets in a single transaction or a series of related transactions with an aggregate fair
market value of less than $10.0 million;




     (9) the creation of a Permitted Lien and dispositions in connection with Permitted
Liens;




     (10) dispositions of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings and exclusive of factoring or similar arrangements;




     (11) the licensing or sublicensing of intellectual property or other general
intangibles and licenses, leases or subleases of other property in the ordinary course of
business which do not materially interfere with the business of the Company and its
Restricted Subsidiaries;




     (12) to the extent allowable under Section 1031 of the Code, any exchange of like
property (excluding any boot thereon) for use in a Related Business;




     (13) foreclosure on assets or transfers by reason of eminent domain;




     (14) any sale of Capital Stock, Indebtedness or other securities of an Unrestricted
Subsidiary;




     (15) assignments and sales of Receivables and Related Security pursuant to a Permitted
Receivables Financing;




     (16) the receipt by the Company or any of its Restricted Subsidiaries of any cash
insurance proceeds or condemnation award payable by reason of theft, loss, physical
destruction or damage, taking or similar event with respect to any of their respective
property or assets;



3









 






     (17) operating leases in the ordinary course of business; and




     (18) surrender or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind.



          “Attributable Indebtedness” in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate implicit in the
transaction) of the total obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any period for which such lease
has been extended), determined in accordance with GAAP; provided, however, that if such
Sale/Leaseback Transaction constitutes a Capitalized Lease Obligation, the amount of Indebtedness
represented thereby shall be determined in accordance with the definition of “Capitalized Lease
Obligations.”




          “Average Life” means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the sum of the products of
the numbers of years from the date of determination to the dates of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (2) the sum of all such payments.




          “Bank Credit Facility” means one or more bank credit facilities with, or sold to,
banks or other lenders providing for revolving credit loans (including letters of credit), term
loans or other commercial loans, in each case, as amended, amended and restated, supplemented,
modified, extended, refinanced, replaced or otherwise restructured, in whole or in part from time
to time (without limitation as to amount, terms, conditions, covenants and other provisions) and
whether by the same or any other agent, lender or group of lenders.




          “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. § 101 et
seq.), as amended from time to time.




          “Bankruptcy Law” means each of the Bankruptcy Code and any similar federal, state or
foreign bankruptcy, insolvency, reorganization, receivership or similar law.




          “Board of Directors” means:





     (1) with respect to a corporation, the Board of Directors of the corporation or (other
than for purposes of determining a Change of Control) any committee thereof duly authorized
to act on behalf of the Board of Directors with respect to the relevant matter;




     (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 or Board of Directors of such company or of the sole member or of the
managing member thereof; and




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



4









 





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




          “Business Day” means each day that is not a Saturday, Sunday or other day on which
commercial banking institutions in New York, New York are authorized or required by law to close.




          “Capital Stock” of any Person means (i) with respect to any Person that is a
corporation, any and all shares, interests, rights to purchase, warrants, options, participations
or other equivalents of or interests in (however designated) equity of such Person, including any
Common Stock or Preferred Stock, and (ii) with respect to any Person that is not a corporation, any
and all partnership, limited liability company, membership or other equity interests of such
Person, but in each case excluding any debt securities convertible into such equity.




          “Capitalized Lease Obligation” means an obligation that is required to be classified
and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP,
and the amount of Indebtedness represented by such obligation shall be the capitalized amount of
such obligation at the time any determination thereof is to be made as determined in accordance
with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date such lease may be terminated without
penalty.




          “Cash Equivalents” means:





     (1) U.S. dollars, or in the case of any Foreign Subsidiary, such currencies held by it
from time to time in the ordinary course of business;




     (2) securities issued or directly and unconditionally guaranteed or insured by the
United States Government or any agency or instrumentality of the United States (provided
that the full faith and credit of the United States is pledged in support thereof);




     (3) marketable general obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition and, at the time of acquisition,
having a credit rating of “A” or better from either Standard & Poor’s Ratings Group, Inc. or
Moody’s Investors Service, Inc.;




     (4) certificates of deposit, time deposits, eurodollar time deposits, overnight bank
deposits or bankers’ acceptances having maturities of not more than one year from the date
of acquisition thereof issued by any commercial bank (i) the short-term commercial paper of
which is rated at the time of acquisition thereof at least “A-1” or the equivalent thereof
by Standard & Poor’s Ratings Group, Inc., or “P-1” or the equivalent thereof by Moody’s
Investors Service, Inc., (ii) having combined capital and surplus in excess of $250.0
million or (iii) constituting a lender under the Revolving Credit Agreement;



5









 






     (5) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clauses (2), (3) and (4) above, entered into with any
bank meeting the qualifications specified in clause (4) above;




     (6) commercial paper rated at the time of acquisition thereof at least “A-1” or the
equivalent thereof by Standard & Poor’s Ratings Group, Inc. or “P-1” or the equivalent
thereof by Moody’s Investors Service, Inc., or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named Rating Agencies cease publishing ratings
of investments, and in any case maturing within one year after the date of acquisition
thereof;




     (7) money market funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by Standard & Poor’s Ratings Group,
Inc. and Aaa by Moody’s Investors Service, Inc. and (iii) have portfolio assets of at least
$5.0 billion;




     (8) securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United States, or
by any political subdivision or taxing authority thereof, and rated at least “A” by Standard
& Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc.;




     (9) in the case of any Foreign Subsidiary, (i) direct obligations of the sovereign
nation (or any agency thereof) in which such Subsidiary is organized and is conducting
business or in obligations fully and unconditionally guaranteed by such sovereign nation (or
any agency thereof), (ii) investments of the type and maturity described in clauses (1)
through (8) above of foreign obligors, which investments or obligors (or the parents of such
obligors) have ratings described in such clauses or equivalent ratings from comparable
foreign rating agencies and (iii) investments of the type and maturity described in clauses
(1) through (8) above of foreign obligors (or the parents of such obligors), which
investment of obligors (or the parents of such obligors) are not rated as provided in such
clauses or in clause (ii) above but which are, in the reasonable judgment of the Company,
comparable in investment quality to such investments and obligors (or the parents of such
obligors);




     (10) time deposit accounts, certificates of deposits and money market deposits in an
aggregate face amount not in excess of 1% of the consolidated total assets of the Company as
of the end of the Company’s most recently completed fiscal year;




     (11) instruments equivalent to those referred to in clauses (1) through (8) above
denominated in euros or any foreign currency comparable in credit quality and tenor to those
referred to in such clauses and customarily used by corporations for cash management
purposes in any jurisdiction outside the United States to the extent reasonably required in
connection with any business conducted by any Restricted Subsidiary organized in such
jurisdiction; and



6









 






     (12) interests in any investment company or money market fund that invests 95% or more
of its assets in instruments of the type specified in clauses (1) through (11) above.



          “Change of Control” means:





     (1) any “person” or “group” of related persons (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have
“beneficial ownership” of all shares that any such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time), directly
or indirectly, of 50% of the total voting power of the Voting Stock of the Company or the
Issuer (or their successors by merger, consolidation or purchase of all or substantially all
of their assets);




     (2) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election to such board or whose nomination for election by the stockholders
of the Company was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved), cease for any reason to constitute a majority of
such Board of Directors then in office;




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




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




     (5) the Company ceases to own, directly or indirectly, all of the Capital Stock of the
Issuer (other than in connection with a merger of the Company into the Issuer permitted by
this Indenture).



          “Code” means the Internal Revenue Code of 1986, as amended.




          “Collateral” means all property and assets, whether now owned or hereafter acquired,
in which Liens are, from time to time, purported to be granted to secure the Notes and the Note
Guarantees pursuant to the Collateral Documents.




          “Collateral Agent” means JPMorgan Chase Bank, N.A., acting in its capacity as
collateral agent under the Collateral Documents and the GM Intercreditor Agreement, or any
successor thereto.




          “Collateral Agreement” means the Collateral Agreement, dated as of November 7, 2008,
as amended and restated as of September 16, 2009, as further amended and restated as of



7









 






the Issue Date, among the Issuer, the Guarantors and the Collateral Agent, as the same may be
amended, supplemented or otherwise modified from time to time.




          “Collateral Documents” means the First Lien Intercreditor Agreement, the Collateral
Agreement, Mortgages, pledge agreements, agency agreements and other instruments and documents
executed and delivered pursuant to this Indenture or any of the foregoing, as the same may be
amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is
pledged, assigned or granted to or on behalf of the Collateral Agent for the benefit of the Holders
and the Trustee or notice of such pledge, assignment or grant is given.




          “Commodity Agreement” means any commodity futures contract, commodity option,
commodity swap agreement, commodity collar agreement, commodity cap agreement or other similar
agreement or arrangement entered into by the Company or any of its Restricted Subsidiaries designed
to protect the Company or any of its Restricted Subsidiaries against fluctuations in the price of
commodities actually used in the ordinary course of business of the Company and its Restricted
Subsidiaries.




          “Common Stock” means, with respect to any Person, any and all shares, interest or
other participations in, and other equivalents (however designated and whether voting or nonvoting)
of, such Person’s common stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.




          “Company” means American Axle & Manufacturing Holdings, Inc., a Delaware corporation,
and its successors and assigns.




          “Concurrent Equity Offering” means the public offering commenced pursuant to the
preliminary prospectus dated December 7, 2009 for cash and consummated on December 15, 2009 by the
Issuer of its Common Stock.




          “Consolidated Coverage Ratio” means as of any date of determination, with respect to
any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the
period of the most recent four consecutive fiscal quarters ending prior to the date of such
determination for which financial statements prepared on a consolidated basis in accordance with
GAAP are available to (y) Consolidated Interest Expense for such four consecutive fiscal quarters;
provided, however, that:




          (1) if the Company or any of its Restricted Subsidiaries:





     (a) has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio is or includes an
Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period (except that in making such computation, the amount of Indebtedness under any
revolving credit facility outstanding on the date of such calculation shall be
deemed to be (i) the average daily balance of such Indebtedness during such four
fiscal quarters or such shorter period for which



8









 







such facility was outstanding or (ii) if such facility was created after the
end of such four fiscal quarters, the average daily balance of such Indebtedness
during the period from the date of creation of such facility to the date of such
calculation); or




     (b) has repaid, repurchased, redeemed, retired, defeased or otherwise
discharged any Indebtedness since the beginning of the period that is no longer
outstanding on such date of determination or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is or includes a discharge of
Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such discharge of
such Indebtedness as if such discharge had occurred on the first day of such period
(except that in making such computation, the amount of Indebtedness under any
revolving credit facility outstanding on the date of such calculation shall be
deemed to be (i) the average daily balance of such Indebtedness during such four
fiscal quarters or such shorter period for which such facility was outstanding or
(ii) if such facility was created after the end of such four fiscal quarters, the
average daily balance of such Indebtedness during the period from the date of
creation of such facility to the date of such calculation);




     (2) if since the beginning of such period the Company or any of its Restricted
Subsidiaries shall have made any Asset Disposition (without giving effect to the $10.0
million threshold in clause (8) of the definition thereof) or disposed of or discontinued
(as defined under GAAP) any company, division, operating unit, segment, business, group of
related assets or line of business or if the transaction giving rise to the need to
calculate the Consolidated Coverage Ratio includes such a transaction:




     (a) the Consolidated EBITDA for such period shall be reduced by an amount equal
to the Consolidated EBITDA (if positive) directly attributable to the assets that
are the subject of such disposition or discontinuation for such period or increased
by an amount equal to the Consolidated EBITDA (if negative) directly attributable
thereto for such period; and




     (b) Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any Indebtedness
of the Company or any of its Restricted Subsidiaries repaid, repurchased, redeemed,
retired, defeased or otherwise discharged with respect to the Company and its
continuing Restricted Subsidiaries in connection with such transaction for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness after
such sale);




     (3) if since the beginning of such period the Company or any of its Restricted
Subsidiaries (by merger or otherwise) shall have made an Investment in any Restricted



9









 







Subsidiary (or any Person that becomes a Restricted Subsidiary or is merged with or
into the Company or any Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction causing a calculation to be
made hereunder, which constitutes all or substantially all of a company, division, operating
unit, segment, business, group of related assets or line of business, Consolidated EBITDA
and Consolidated Interest Expense for such period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period;




     (4) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any of its Restricted
Subsidiaries since the beginning of such period) shall have Incurred any Indebtedness or
discharged any Indebtedness, made any disposition or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (1), (2) or (3) above if made by
the Company or any of its Restricted Subsidiaries during such period, Consolidated EBITDA
and Consolidated Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such transaction occurred on the first day of such period; and




     (5) if since the beginning of such period the Company or any of its Restricted
Subsidiaries has Incurred income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or not such operations
were classified as discontinued), Consolidated EBITDA for such period shall be calculated
after amounts attributable to such discontinued operations.



          If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term
in excess of 12 months). If any Indebtedness that is being given pro forma effect bears an interest
rate at the option of the Company, the interest rate shall be calculated by applying such optional
rate chosen by the Company. For purposes of this definition, whenever pro forma effect is to be
given to any calculation under this definition, the pro forma calculations shall be (x) made in
good faith by a responsible financial or accounting officer of the Company (and may include,
without limitation and for the avoidance of doubt, cost savings, operating expense reductions and
other operating improvements or synergies reasonably expected to result from such Investments,
acquisition, merger or consolidation which is being given pro forma effect that have been or are
expected to be realized within twelve months after the date of such Investment, acquisition, merger
or consolidation as the result of specified actions taken or to be taken within six months after
such date and that are supportable and quantifiable) or (y) determined in accordance with
Regulation S-X.




10









 








          “Consolidated EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period:





     (1) increased (without duplication) by the following items to the extent deducted in
calculating such Consolidated Net Income:




     (a) Consolidated Interest Expense; plus




     (b) Consolidated Income Taxes; plus




     (c) consolidated depreciation expense; plus




     (d) consolidated amortization expense or impairment charges recorded in
connection with the application of Financial Accounting Standard No. 142 “Goodwill
and Other Intangibles” and Financial Accounting Standard No. 144 “Accounting for the
Impairment or Disposal of Long Lived Assets”; plus




     (e) other non-cash charges reducing Consolidated Net Income, including any
write-offs or write-downs (excluding any such non-cash charge to the extent it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period not included
in the calculation); plus




     (f) any non-cash compensation expense realized for grants of restricted stock,
performance shares, stock options or other rights to officers, directors and
employees of the Company or any of its Restricted Subsidiaries; provided that such
            shares, options or other rights can be redeemed at the option of the holder only for
Capital Stock of the Company (other than Disqualified Stock); plus




     (g) any fees, charges or other expenses made or Incurred in connection with any
actual or proposed Investment, asset sale, acquisition, recapitalization or issuance
of Capital Stock or Incurrence of Indebtedness or any repayment, amendment or
modification of Indebtedness; plus




     (h) the amount of any unusual or non-recurring items or restructuring charges
(including, without limitation, lease termination, severance, relocation, retention
and system establishment costs, excess pension charges and contract termination
costs to consolidate facilities), integration costs or other business optimization
expenses or reserves or other non-recurring charges or expenses deducted (and not
added back) in such period in computing Consolidated Net Income; plus




     (i) without duplication, for those fiscal periods completed prior to the Issue
Date, all adjustments to “EBITDA” for such period used to calculate “Adjusted
EBITDA” for such period as disclosed in footnote (3) to the “—Summary—Summary
consolidated financial data” section of the Offering Memorandum; plus



11









 






     (j) without duplication, interest-equivalent costs, commissions, discounts,
yields and other fees and expenses associated with any Permitted Receivables
Financing, whether accounted for as interest expense or loss on the sale of
Receivables;




     (2) decreased (without duplication) by non-cash items increasing Consolidated Net
Income of such Person for such period (excluding the ordinary course accrual of revenue and
any items which represent the reversal of any accrual of, or reserve for, anticipated cash
charges that reduced EBITDA in any prior period); and




     (3) increased or decreased (without duplication) to eliminate the following items
reflected in Consolidated Net Income:




     (a) any net gain or loss resulting in such period from Hedging Obligations and
the application of Statement of Financial Accounting Standards No. 133;




     (b) all unrealized gains and losses relating to financial instruments to which
fair market value accounting is applied;




     (c) any net gain or loss resulting in such period from currency translation
gains or losses related to currency remeasurements of Indebtedness (including any
net loss or gain resulting from Hedging Obligations for currency exchange risk); and




     (d) effects of adjustments (including the effects of such adjustments pushed
down to the Company and its Restricted Subsidiaries) in any line item in such
Person’s consolidated financial statements pursuant to GAAP resulting from the
application of purchase accounting in relation to any completed acquisition.


Notwithstanding the foregoing, clauses (1)(b) through (e) relating to amounts of a Restricted
Subsidiary of a Person shall be added to Consolidated Net Income to compute Consolidated EBITDA of
such Person only to the extent (and in the same proportion) that the net income (loss) of such
Restricted Subsidiary (other than the Issuer or a Subsidiary Guarantor) was included in calculating
the Consolidated Net Income of such Person.




          “Consolidated Income Taxes” means, with respect to any Person for any period, taxes
imposed upon such Person or other payments required to be made by such Person by any governmental
authority which taxes or other payments are calculated by reference to the income or profits or
capital of such Person or such Person and its Restricted Subsidiaries (to the extent such income or
profits were included in computing Consolidated Net Income for such period), including, without
limitation, state, franchise and similar taxes and foreign withholding taxes regardless of whether
such taxes or payments are required to be remitted to any governmental authority.




          “Consolidated Interest Expense” for any period means the sum, without duplication, of
the total interest expense of the Company and its consolidated Restricted Subsidiaries for such
period, whether paid or accrued, plus:




12









 









     (1) interest expense attributable to Capitalized Lease Obligations and the interest
portion of rent expense associated with Attributable Indebtedness in respect of the relevant
lease giving rise thereto, determined as if such lease were a capitalized lease in
accordance with GAAP and the interest component of any deferred payment obligations;




     (2) amortization of debt discount (including the amortization of original issue
discount resulting from the issuance of Indebtedness at less than par); provided, however,
that any amortization of bond premium shall be credited to reduce Consolidated Interest
Expense unless, pursuant to GAAP, such amortization of bond premium has otherwise reduced
Consolidated Interest Expense;




     (3) non-cash interest expense; provided any (i) non-cash interest expense or income
attributable to the movement in the mark-to-market valuation of Hedging Obligations or other
derivative instruments pursuant to GAAP and (ii) amortization or write-off of deferred
financing fees, debt issuance costs, commissions, fees and expenses shall be excluded from
the calculation of Consolidated Interest Expense;




     (4) commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing;




     (5) the interest expense on Indebtedness of another Person that is Guaranteed by the
Company or one of its Restricted Subsidiaries or secured by a Lien on assets of the Company
or one of its Restricted Subsidiaries; provided, however, that such interest shall only be
included in “Consolidated Interest Expense” if the Company or any of its Restricted
Subsidiaries has ever previously made a payment of interest or principal or other
Obligations in respect of such Indebtedness;




     (6) net costs associated with entering into Interest Rate Agreements (including
amortization of fees);




     (7) the Consolidated Interest Expense of the Company and its Restricted Subsidiaries
that was capitalized during such period; and




     (8) the product of (a) all dividends paid or payable, in cash, Cash Equivalents or
Indebtedness or accrued during such period on any series of Disqualified Stock of the
Company or on Preferred Stock of its Restricted Subsidiaries that are not Subsidiary
Guarantors payable to a party other than the Company or a Wholly Owned Subsidiary times (b)
a fraction, the numerator of which is one and the denominator of which is one minus the then
current combined federal, state, provincial and local statutory tax rate of the Company,
expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.


For purposes of the foregoing, total interest expense shall be determined (i) after giving effect
to any net payments made or received by the Company and its Subsidiaries with respect to Interest
Rate Agreements and (ii) exclusive of amounts classified as other comprehensive income in the
balance sheet of the Company.




13









 







Notwithstanding the foregoing, for the purposes of the definition of “Consolidated Secured Debt
Ratio”, “Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its consolidated Restricted Subsidiaries for such period determined in accordance with
GAAP.




          “Consolidated Net Income” for any period means the net income (loss) of the Company
and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP (before preferred stock dividends); provided, however, that there shall not be included
in such Consolidated Net Income:





     (1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary
or that is accounted for by the equity method of accounting, except that:




     (a) subject to the limitations contained in clauses (3) through (6) below, the
Company’s equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or any of its
Restricted Subsidiaries as a dividend or other distribution (subject, in the case of
a dividend or other distribution to a Restricted Subsidiary, to the limitations
contained in clause (2) below); and




     (b) the Company’s equity in a net loss of any such Person for such period shall
be included in determining such Consolidated Net Income to the extent such loss has
been funded with cash from the Company or any of its Restricted Subsidiaries during
such period;




     (2) solely for the purpose of determining the amount available for Restricted Payments
under Section 3.4(a)(iv)(3)(A), any net income (but not loss) of any Restricted
Subsidiary (other than the Issuer or a Subsidiary Guarantor) if such Restricted Subsidiary
is subject to prior government approval or other restrictions due to the operation of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or government
regulation (which have not been waived), directly or indirectly, on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the
Company, except that:




     (a) subject to the limitations contained in clauses (3) through (6) below, the
Company’s equity in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the aggregate amount of cash
that could have been distributed by such Restricted Subsidiary during such period to
the Company, the Issuer or another Restricted Subsidiary as a dividend (subject, in
the case of a dividend to another Restricted Subsidiary, to the limitation contained
in this clause); and




     (b) the Company’s equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net Income;



14









 






     (3) any after-tax effect of gain or loss (less all fees and expenses relating thereto)
realized upon sales or other dispositions of any assets of the Company or such Restricted
Subsidiary, other than in the ordinary course of business;




     (4) any after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments;




     (5) the after-tax effect of any extraordinary or non-cash, non-recurring gain or loss
or special charge;




     (6) the after-tax effect of the cumulative effect of a change in accounting principles;




     (7) any after-tax effect of non-cash impairment charges recorded in connection with the
application of Financial Accounting Standard No. 142 “Goodwill and Other Intangibles” and
Financial Accounting Standard No. 144 “Accounting for the Impairment or Disposal of Long
Lived Assets”;




     (8) any non-cash compensation expense realized for grants of performance shares, stock
options or other rights to officers, directors and employees of the Company or any of its
Restricted Subsidiaries; provided that such shares, options or other rights can be redeemed
at the option of the holder only for Capital Stock of the Company (other than Disqualified
Stock); and




     (9) all deferred financing costs written off, and premiums paid, in connection with any
early extinguishment of Indebtedness.


Notwithstanding the foregoing, for the purposes of Section 3.4 only, (i) there shall be
excluded from Consolidated Net Income any income arising from any distribution or dividend from an
Unrestricted Subsidiary only to the extent such amounts increase the amount of Restricted Payments
permitted under such covenant pursuant to Section 3.4(a)(iv)(3)(E) or
Section 3.4(a)(iv)(3)(G) and (ii) there shall be included in Consolidated Net Income any
tax refunds received by the Company and its Restricted Subsidiaries to the extent not already
included therein.




          “Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of
(a) the sum of, without duplication (i) total consolidated Indebtedness of the Company and its
Restricted Subsidiaries on the date of determination (including, for the avoidance of doubt and
without duplication, Receivables Financing Debt) that is secured by Liens and (ii) total
Indebtedness of the Non-Guarantor Subsidiaries, on the date of determination, in each case, after
giving effect to the transaction giving rise to the need to calculate the Consolidated Secured Debt
Ratio, to (b) the aggregate amount of Consolidated EBITDA for the then most recent four fiscal
quarters for which financial statements of the Company and its Restricted Subsidiaries are
available, with such pro forma adjustments to Consolidated EBITDA as are consistent with the
adjustment provisions set forth in the definition of Consolidated Coverage Ratio.




          “Credit Facilities” means one or more debt facilities or commercial paper facilities
(which may be outstanding at the same time and including, without limitation, the



15









 






Revolving Credit Agreement) providing for revolving credit loans, term loans, letters of
credit, receivables financing, commercial paper, notes, indentures or any other form of senior debt
securities and, in each case, as such agreements may be amended, amended and restated,
supplemented, modified, extended, refinanced, replaced or otherwise restructured, in whole or in
part from time to time (including increasing the amount of available borrowings thereunder or
adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) with respect
to all or any portion of the Indebtedness under such agreement or agreements or any successor or
replacement agreement or agreements and whether by the same or any other agent, lender, group of
lenders or trustee.




          “Currency Agreement” means in respect of a Person any foreign exchange contract,
currency swap agreement, futures contract, option contract or other similar agreement as to which
such Person is a party or a beneficiary.




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




          “Default” means any event or condition that is, or after notice or passage of time 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 2.6 hereof, substantially in the form of
Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the
“Schedule of Increases or Decreases in the Global Note” attached thereto.




          “Depositary” means The Depository Trust Company, its nominees and their respective
successors and assigns, or such other depository institution hereinafter appointed by the Company.




          “DIP Financing” means any financing provided by the First Lien Creditors or any third
parties under the Bankruptcy Code or other Bankruptcy Law.




          “Disqualified Stock” means, with respect to any Person, any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable) or upon the happening of any event:





     (1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;




     (2) is convertible into or exchangeable for Indebtedness or Disqualified Stock
(excluding Capital Stock which is convertible or exchangeable solely at the option of the
Company or any of its Restricted Subsidiaries (it being understood that upon such conversion
or exchange it shall be an Incurrence of such Indebtedness or Disqualified Stock)); or




     (3) is redeemable at the option of the holder of the Capital Stock in whole or in part,



16









 




in each case on or prior to the date 91 days after the earlier of the final maturity date of the
Notes or the date the Notes are no longer outstanding; provided, however, that (a) only the portion
of Capital Stock that so matures or is mandatorily redeemable is so convertible or exchangeable or
is so redeemable at the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; (b) that any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a Change of Control or Asset Disposition (each defined in a substantially
identical manner to the corresponding definitions in this Indenture) shall not constitute
Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is
convertible or for which it is ratable or exchangeable) provide that the Company may not repurchase
or redeem any such Capital Stock (and all such securities into which it is convertible or for which
it is ratable or exchangeable) pursuant to such provision prior to compliance by the Company with
Sections 3.4, 3.7 and 3.9; (c) with respect to any Capital Stock issued to any employee or
to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Company or one of its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations or as a result of such employee’s termination, resignation,
death or disability; and (d) if any class of Capital Stock of such Person that by its terms
authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is
not Disqualified Stock, such Capital Stock shall not be deemed to be Disqualified Stock.




          “Equity Offering” means a public offering for cash by the Issuer or the Company of its
Common Stock, or options, warrants or rights with respect to its Common Stock, other than (x)
public offerings with respect to the Issuer’s or the Company’s Common Stock, or options, warrants
or rights, registered on Form S-4 or S-8, (y) an issuance to any Subsidiary of the Company or (z)
any offering of Common Stock issued in connection with a transaction that constitutes a Change of
Control.




          “Excess Senior Obligations” means the excess of the First Lien Obligations over the
Senior Obligations Cap. For purposes of determining the Excess Senior Obligations, unless the
Interim DIP Period is in effect or the GM Contract Assumption has occurred (and subject to clause
(ii) of the next sentence), (a) any DIP Financing provided by the First Lien Creditors will be
deemed to be part of the First Lien Obligations, and (b) the amount of any customary “carve-out” or
other similar administrative priority expense or claim consented to in writing by the Collateral
Agent or the First Lien Creditors to be paid prior to the First Lien Obligations Payment Date will
be considered a DIP Financing loan advance subject to the Senior Obligation Cap. For certainty,
(i) in connection with any insolvency proceedings, during the Interim DIP Period and from and after
the occurrence of the GM Contract Assumption, the amounts described in clauses (a) and (b) above
will not be deemed part of the First Lien Obligations for purposes of determining the Excess Senior
Obligations and (ii) from and after the end of the Interim DIP Period, if the GM Contract
Assumption has not occurred, then the amounts described in clause (a), to the extent of any amounts
outstanding at the end of the Interim DIP Period, and clause (b) above will not be deemed part of
the First Lien Obligations for purposes of determining the Excess Senior Obligations, but any
additional DIP Financing loans funded by the First Lien Creditors thereafter shall be deemed part
of the First Lien Obligations for such purpose unless and until the GM Contract Assumption occurs.




17









 








          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.




          “Existing Second Lien Security Agreement” means the Collateral Agreement dated as of
September 16, 2009, among certain Note Parties and GM.




          “Existing Senior Notes” means (a) the 5.25% senior notes due 2014 issued pursuant to
the Indenture, dated as of February 11, 2004, between the Issuer, the Company and BNY Midwest Trust
Company, as trustee, outstanding as of the Issue Date, and (b) the 7.875% senior notes due 2017
issued pursuant to the Indenture, dated as of February 27, 2007, among the Issuer, the Company and
The Bank of New York Trust Company, N.A., as trustee, outstanding as of the Issue Date.




          “Existing Senior Notes Indentures” means the indentures pursuant to which the Existing
Senior Notes were issued.




          “Existing Term Loan Agreement” means the Amended and Restated Credit Agreement dated
as of June 14, 2007, as amended and restated as of September 16, 2009, among the Issuer, the
Company, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as
amended, restated or supplemented from time to time.




          “First Call Date” means January 15, 2014.




          “First Lien Collateral” means all assets, whether now owned or hereafter acquired by
the Issuer or any other Note Party, in which a Lien is granted or purported to be granted to or for
the benefit of any First Lien Creditor as security for any First Lien Obligation.




          “First Lien Creditor” means the Collateral Agent and the other secured parties from
time to time party to any of the First Lien Documents or to which any First Lien Obligations are
owed, including, subsequent to any replacement, renewal or refinancing of the Revolving Credit
Agreement, any agents, lenders or holders of any First Lien Obligations.




          “First Lien Documents” means collectively (a) the Revolving Credit Agreement, (b) the
Existing Term Loan Agreement, (c) this Indenture and the Notes, (d) except for those that are
unsecured, any other credit agreement, loan agreement, note agreement, promissory note indenture or
other agreement or instrument evidencing or governing the terms or any indebtedness or other
financial accommodation that has been incurred to refinance in whole or in part the indebtedness
and other obligations outstanding under the Revolving Credit Agreement, the Existing Term Loan
Agreement, this Indenture, the Notes and/or any other agreement or instrument referred to in this
clause (d), provided that clause (d) shall not apply in the case of any refinancing if an
intercreditor agreement other than the GM Intercreditor Agreement existing on the Issue Date (as
amended, restated or supplemented from time to time) is entered into by GM and the holder or
holders of such refinancing indebtedness (or an agent, trustee or other representative of such
holder or holders), (e) any document pursuant to which any Note Party guarantees any First Lien
Obligations and (f) any other documents pursuant to which any Liens or other security interests may
from time to time be granted in any First Lien Collateral in favor of the Collateral Agent or any
First Lien Creditor under or in connection with any First Lien



18









 






Obligation, in the case of (a), (b), (c), (d), (e) and (f), as each such document may be
amended, supplemented, restated or otherwise modified from time to time.




          “First Lien Intercreditor Agreement” means the First Lien Intercreditor Agreement
dated as of the Issue Date, among the Issuer, the Company, the Subsidiary Guarantors, the
Collateral Agent, JPMorgan Chase Bank, N.A., as administrative agent, and the Trustee, as amended,
supplemented, restated or otherwise modified from time to time.




          “First Lien Obligations” means (a) all principal of and interest (including, without
limitation, any post-petition interest) and premium (if any) on all loans or advances made pursuant
to, or the issuance of any debt under, the Revolving Credit Agreement and the Notes (or, in each
case, any refinancing indebtedness in respect thereof), (b) all reimbursement obligations (if any)
and interest thereon (including, without limitation, any post-petition interest) with respect to
any letter of credit or similar instruments (if any) issued pursuant to the Revolving Credit
Agreement (or any refinancing indebtedness in respect thereof), (c) obligations of any Note Party
under any swap agreement, to the extent that any First Lien Document provides that such obligations
are secured by First Lien Collateral and (d) all guarantee obligations, fees, expenses and other
amounts payable from time to time pursuant to the First Lien Documents, in each case whether or not
allowed or allowable in an insolvency proceeding.




          “Foreign Subsidiary” means any Restricted Subsidiary that is not organized under the
laws of the United States of America or any state thereof or the District of Columbia and any
Subsidiary of such Restricted Subsidiary.




          “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP, except that in the event the Company is acquired in a transaction that is
accounted for using purchase accounting, the effects of the application of purchase accounting
shall be disregarded in the calculation of such ratios and other computations contained in this
Indenture.




          “GM” means General Motors LLC.




          “GM Access Agreement” means the Access and Security Agreement entered into by GM and
the Issuer as of September 16, 2009, as amended, restated, renewed, extended, supplemented or
otherwise modified from time to time.




          “GM Agreements” means the GM Access Agreement and the GM Commercial Agreement.




          “GM Commercial Agreement” means the Settlement and Commercial Agreement entered into
by and among GM, the Company and the Issuer as of September 16, 2009, as amended, restated,
renewed, extended, supplemented or otherwise modified from time to time.




19









 








          “GM Contract Assumption” means, in an insolvency proceeding involving the Note
Parties, the GM Agreements are (i) assumed by the applicable Note Parties under Section 365 of the
Bankruptcy Code pursuant to a final non-appealable order, or (ii) a final non-appealable order is
entered authorizing the applicable Note Parties’ entry into the GM Agreements as post-petition
contracts and holding that such agreements are enforceable in accordance with their respective
terms.




          “GM Intercreditor Agreement” means the Intercreditor Agreement dated as of
September 16, 2009, among the Collateral Agent, GM, the Issuer and the Company, as amended,
restated or supplemented from time to time, or a Replacement Intercreditor Agreement, as
applicable.




          “GM Second Lien Credit Agreement” means the Credit Agreement dated as of September 16,
2009, among the Issuer, the Company and GM, as lender, as amended.




          “GM Second Lien Indebtedness” means Indebtedness Incurred or to be Incurred pursuant
to the Second Lien Documents.




          “Good Faith by the Company” means the decision in good faith by a responsible
financial or accounting officer of the Company; provided that if such decision involves a
determination of fair market value in excess of $10.0 million, the decision is made in good faith
by the Senior Management of the Company.




          “Guarantee” means any obligation, contingent or otherwise, of any Person, directly or
indirectly, guaranteeing any Indebtedness or other nonfinancial obligations of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:





     (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise); or




     (2) entered into for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business.
The term “Guarantee” used as a verb has a corresponding meaning.



          “Guarantors” means the Company and the Subsidiary Guarantors.




          “Guarantor Subordinated Obligation” means, with respect to a Guarantor, any
Indebtedness of such Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that
is expressly subordinated in right of payment to the obligations of such Guarantor under its Note
Guarantee pursuant to a written agreement.




          “Hedging Obligations” of any Person means the obligations of such Person pursuant to
any Interest Rate Agreement, Currency Agreement or Commodity Agreement.




20









 








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




          “Immaterial Non-Guarantor Subsidiary” means, at any time, any Non-Guarantor Subsidiary
the total assets of which does not exceed $10.0 million (determined as of the end of the most
recent fiscal quarter of the Company for which financial statements of the Company are available).




          “Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such
Person becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such Person at the time it becomes a Restricted Subsidiary; and
the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing. Any Indebtedness
issued at a discount (including Indebtedness on which interest is payable through the issuance of
additional Indebtedness) shall be deemed Incurred at the time of original issuance of the
Indebtedness at the initial accreted amount thereof.




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





     (1) the principal of and premium (if any) in respect of indebtedness of such Person for
borrowed money;




     (2) the principal of and premium (if any) in respect of obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments;




     (3) the principal component of all obligations of such Person in respect of letters of
credit, bankers’ acceptances or other similar instruments (including reimbursement
obligations with respect thereto, except to the extent such reimbursement obligation relates
to a Trade Payable or similar obligation to a trade creditor in each case Incurred in the
ordinary course of business and such obligation is satisfied within 30 days of Incurrence)
other than obligations with respect to letters of credit securing obligations (other than
obligations described in clauses (1) and (2) above and clause (5) below) entered into in the
ordinary course of business of such Person to the extent such letters of credit are not
drawn upon or, to the extent drawn upon, such drawing is reimbursed no later than the fifth
Business Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit; provided, however, that all obligations of the Company and
its Restricted Subsidiaries for the reimbursement of any obligor on any letter of credit,
bankers’ acceptance or other similar instrument aggregating in excess of $75.0 million shall
constitute Indebtedness for all purposes of Section 3.5 and for determining the
Company’s ability to Incur Liens;




     (4) the principal component of all obligations of such Person to pay the deferred and
unpaid purchase price of property (except Trade Payables), which purchase price is due more
than six months after the date of placing such property in service or taking delivery and
title thereto, except (i) any such balance that constitutes a Trade Payable or similar
obligation to a trade creditor, in each case accrued in the ordinary course of



21









 







business and (ii) any earn-out obligation until the amount of such obligation becomes a
liability on the balance sheet of such Person in accordance with GAAP;




     (5) Capitalized Lease Obligations and all Attributable Indebtedness of such Person
(whether or not such items would appear on the balance sheet of the guarantor or obligor);




     (6) the principal component or liquidation preference of all obligations of such Person
with respect to the redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary that is not a Subsidiary Guarantor, any Preferred Stock (but
excluding, in each case, any accrued dividends);




     (7) the principal component of all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser of (a) the fair
market value of such asset at such date of determination and (b) the amount of such
Indebtedness of such other Persons;




     (8) the principal component of Indebtedness of other Persons to the extent Guaranteed
by such Person (whether or not such items would appear on the balance sheet of the guarantor
or obligor); and




     (9) to the extent not otherwise included in this definition, net Hedging Obligations of
such Person (the amount of any such obligations to be equal at any time to the termination
value of such agreement or arrangement giving rise to such Hedging Obligation that would be
payable by such Person at such time) and Receivables Financing Debt.



          The Indebtedness of any Person shall include the Indebtedness of any other entity (including
any partnership in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.




          The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent obligations at such
date; provided that contingent obligations arising in the ordinary course of business and not with
respect to borrowed money of such Person or other Persons shall not be deemed to constitute
Indebtedness.




          “Independent Financial Advisor” means an accounting, appraisal or investment banking
firm or consultant to Persons engaged in a Related Business of nationally recognized standing that
is, in the good faith judgment of the Company, qualified to perform the task for which it has been
engaged.




          “Interest Payment Date” means January 15 and July 15 of each year to the Stated
Maturity of the Notes.




22









 








          “Interest Rate Agreement” means with respect to any Person any interest rate
protection agreement, interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such Person is party or a
beneficiary.




          “Interim DIP Period” means the period commencing on and including the date that the
relevant bankruptcy court enters an interim order approving a Qualifying DIP Financing and ending
on the date that is the earlier of (a) 60 days after the date of such interim order and (b) the
date that such bankruptcy court enters a final order approving such Qualifying DIP Financing.




          “Investment” in any Person means any direct or indirect advance, loan (other than
advances or extensions of credit to customers in the ordinary course of business that are in
conformity with GAAP recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries) or other extensions of credit (including by
way of Guarantee or similar arrangement, but excluding any debt or extension of credit represented
by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property or services for the account or use
of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by, such Person and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided that none of the
following shall be deemed to be an Investment:





     (1) Hedging Obligations entered into in the ordinary course of business and in
compliance with this Indenture;




     (2) endorsements of negotiable instruments and documents in the ordinary course of
business;




     (3) an acquisition of assets, Capital Stock or other securities by the Company or a
Subsidiary for consideration to the extent such consideration consists of Common Stock of
the Company; and




     (4) extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.


For purposes of Section 3.4,





     (1) “Investment” shall include the portion (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 such Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon
a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed
to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to (a) the Company’s aggregate “Investment” in such Subsidiary as of the
time of such redesignation less (b) the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the fair market value of the net assets



23









 







(as conclusively determined in Good Faith by the Company) of such Subsidiary at the
time that such Subsidiary is so redesignated a Restricted Subsidiary; and




     (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case as determined in Good Faith
by the Company.



          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s Investors Service, Inc. and BBB- (or the equivalent) by Standard & Poor’s
Ratings Group, Inc., in each case, with a stable or better outlook; provided that a change in
outlook shall not by itself cause the Company to lose its Investment Grade Rating.




          “Issue Date” means December 18, 2009.




          “Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind
in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to
constitute a Lien.




          “Lien Basket Amount” means, as of any date, an amount equal to 10% of “Consolidated
Net Tangible Assets” (within the meaning of the Existing Senior Notes Indentures) as of such date.




          “Mortgage” means a mortgage, deed of trust, assignment of leases and rents or other
Collateral Document granting a Lien on any Mortgaged Property to secure the Notes and the Note
Guarantees. Each Mortgage shall be reasonably satisfactory in form and substance to the Collateral
Agent.




          “Mortgaged Property” means, initially, each parcel of real property and the
improvements thereto owned by a Note Party and subject to a mortgage in favor of the Collateral
Agent securing obligations under the Revolving Credit Agreement, and includes each other parcel of
real property and improvements thereto with respect to which a Mortgage is granted pursuant to
Section 3.18.




          “Net Available Cash” from an Asset Disposition means cash payments received (including
any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and net proceeds from the sale or other disposition of any
securities or other assets received as consideration, but only as and when received, but excluding
any other consideration received in the form of assumption by the acquiring Person of Indebtedness
or other obligations relating to the properties or assets that are the subject of such Asset
Disposition or received in any other non-cash form) therefrom, in each case net of:





     (1) all brokerage, legal, accounting, investment banking, title and recording tax
expenses, commissions and other fees and expenses Incurred, and all federal, state,



24









 







provincial, foreign and local taxes required to be paid or accrued as a liability under
GAAP (after taking into account any available tax credits or deductions and any tax sharing
agreements), as a consequence of such Asset Disposition;




     (2) all payments made on any Indebtedness that is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon such assets, or that must
by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law be repaid out of the proceeds from such Asset Disposition;




     (3) (a) all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition and
(b) amounts required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to such Asset Disposition;




     (4) the deduction of appropriate amounts to be provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or other assets
disposed of in such Asset Disposition and retained by the Company or any of its Restricted
Subsidiaries after such Asset Disposition; and




     (5) any portion of the purchase price from an Asset Disposition placed in escrow
(whether as a reserve for adjustment of the purchase price or for satisfaction of
indemnities in respect of such Asset Disposition);


provided, however, that, in the cases of clauses (4) and (5), upon reversal of any such reserve or
the termination of any such escrow, Net Available Cash shall be increased by the amount of such
reversal or any portion of funds released from escrow to the Company or any of its Restricted
Subsidiaries.




          “Net Cash Proceeds” means, with respect to any issuance or sale of Capital Stock of
the Company or Indebtedness, the cash proceeds of such issuance or sale, net of attorneys’ fees,
accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions
and brokerage, consultant and other fees and charges actually Incurred in connection with such
issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after
taking into account any available tax credit or deductions and any tax sharing arrangements).




          “Non-Guarantor Subsidiary” means any Restricted Subsidiary that is not a Subsidiary
Guarantor.




          “Non-Recourse Debt” means Indebtedness of a Person:





     (1) as to which neither the Company nor any of its Restricted Subsidiaries (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);




     (2) no default with respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit



25









 







(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 under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated
Maturity; and




     (3) the explicit terms of which provide there is no recourse against any of the assets
of the Company or its Restricted Subsidiaries.



          “Note Guarantee” means any Guarantee by a Guarantor pursuant to the terms of this
Indenture and any supplemental indenture thereto. Each such Note Guarantee shall be in the form
prescribed by this Indenture.




          “Note Parties” means, collectively, the Issuer and the Guarantors.




          “Notes Custodian” means the custodian with respect to the Global Note (as appointed by
the Depositary), or any successor Person thereto and shall initially be the Trustee.




          “NWO Subsidiary” means any Subsidiary of the Company with respect to which (except for
directors’ qualifying shares) the Company owns, directly or indirectly, Capital Stock representing
less than 100% of the outstanding Capital Stock and less than 100% of the outstanding voting
Capital Stock; provided that a Subsidiary shall not be an “NWO Subsidiary” if such Subsidiary was a
Note Party before it met the foregoing criteria for becoming an “NWO Subsidiary,” unless such
Subsidiary became an “NWO Subsidiary” pursuant to a transfer of all Capital Stock in such
Subsidiary owned, directly or indirectly, by the Company to an NWO Subsidiary, in accordance with
this Indenture.




          “Obligations” means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foregoing law), penalties, fees, indemnifications,
reimbursements (including, without limitation, reimbursement obligations with respect to letters of
credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.




          “Offering Memorandum” means the final offering memorandum, dated as of December 10,
2009, relating to the offering of the Notes.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President,
the Treasurer or the Secretary of the Company or, in the event that a Person is a partnership or a
limited liability company that has no such officers, a person duly authorized under applicable law
by the general partner, managers, members or a similar body to act on behalf of such Person.
Officer of any Subsidiary Guarantor has a correlative meaning.




          “Officer’s Certificate” means a certificate signed by an Officer of the Company.




26









 








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




          “Perfection Certificate” means any perfection certificate substantially in the form
delivered on the Issue Date.




          “Permitted Additional Pari Passu Obligations” means obligations under any Additional
Notes or any other Indebtedness (whether or not consisting of Additional Notes) secured by Liens on
the Collateral; provided that, as of the date of Incurrence of such Permitted Additional Pari Passu
Obligations, after giving effect thereto and the application of proceeds therefrom, the
Consolidated Secured Debt Ratio of the Company and its Restricted Subsidiaries would be no greater
than 2.5:1.0.




          “Permitted Encumbrances” means, with respect to any Person:





     (1) pledges or deposits by such Person under workers’ compensation laws, unemployment,
general insurance and other insurance laws and old age pensions and other social security or
retirement benefits or similar legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements in respect of such obligations, or
good faith deposits to secure or in connection with bids, tenders, trade contracts (other
than for the payment of Indebtedness) or leases to which such Person is a party, or deposits
to secure public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import or customs duties or for the payment of
rent, in each case Incurred in the ordinary course of business;




     (2) Liens imposed by law, including carriers’, warehousemen’s, mechanics’,
materialmen’s, landlord’s, supplier’s, artisan’s and repairmen’s Liens, Incurred in the
ordinary course of business;




     (3) Liens for taxes, assessments or other governmental charges not yet subject to
penalties for non-payment or that are being contested in good faith by appropriate
proceedings; provided appropriate reserves required pursuant to GAAP have been made in
respect thereof;




     (4) Liens in favor of issuers of surety or performance bonds or letters of credit or
bankers’ acceptances or similar obligations issued pursuant to the request of and for the
account of such Person in the ordinary course of its business;




     (5) minor survey exceptions, encumbrances, ground leases, 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, building codes or other restrictions
(including, without limitation, minor defects or irregularities in title and similar
encumbrances) as to the use of real properties or liens incidental to the conduct of the
business of such Person or to the ownership of its properties that do not in the



27









 







aggregate materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;




     (6) leases, licenses, subleases and sublicenses of assets (including, without
limitation, real property and intellectual property rights) that do not materially interfere
with the ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;




     (7) judgment Liens not giving rise to an Event of Default so long as any appropriate
legal proceedings that may have been duly initiated for the review of such judgment have not
been finally terminated or the period within which such proceedings may be initiated has not
expired;




     (8) Liens that constitute banker’s Liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a depositary institution,
whether arising by operation of law or pursuant to contract;




     (9) Liens arising from precautionary Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Company and its Restricted
Subsidiaries in the ordinary course of business;




     (10) any interest or title of a lessor under any operating lease;




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




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




     (13) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;




     (14) Liens on funds of the Company or any Subsidiary held in deposit accounts with
third party providers of payment services securing credit card charge-back reimbursement and
similar cash management obligations of the Company or the Subsidiaries;




     (15) Liens of a collecting bank arising in the ordinary course of business under
Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering
only the items being collected upon;




     (16) Liens arising by operation of law or contract on insurance policies and the
proceeds thereof to secure premiums thereunder; and



28









 






     (17) any purchase option, call or similar right of a third party that owns Capital
Stock in an NWO Subsidiary with respect to any Capital Stock in such NWO Subsidiary that are
customary among parties to a joint venture;


provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.





     “Permitted Governmental Receivables Program” means the Auto Supplier Support
Program established by the United States Department of the Treasury pursuant to the
authority granted to it by and under the Emergency Economic Stabilization Act of 2008, as
amended, or any other similar governmental receivables program.



          “Permitted Investment” means an Investment by the Company or any of its Restricted
Subsidiaries in:





     (1) the Company or any of its Restricted Subsidiaries, including, without limitation,
through the purchase of Capital Stock of a Restricted Subsidiary;




     (2) any Investment by the Company or any of its Restricted Subsidiaries in a Person
that is engaged in a Related Business if as a result of such Investment:




     (a) such Person becomes a Restricted Subsidiary; or




     (b) such Person, in one transaction or a series of related transactions, is
merged or consolidated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or any of its Restricted
Subsidiaries,




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




     (3) cash and Cash Equivalents;




     (4) receivables owing to the Company or any Restricted Subsidiary created or acquired
in the ordinary course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such concessionary trade
terms as the Company or any such Restricted Subsidiary deems reasonable under the
circumstances;




     (5) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes and that are
made in the ordinary course of business;




     (6) loans or advances to, or guarantees of Indebtedness of, employees, officers or
directors of the Company or any of its Restricted Subsidiaries in the ordinary course of
business consistent with past practices in an aggregate amount outstanding at any time not
in excess of $5.0 million with respect to all loans, advances or guarantees made since the
Issue Date (without giving effect to the forgiveness of any such loan);



29









 






     (7) any Investment acquired by the Company or any of its Restricted Subsidiaries:




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




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




     (c) in the form of notes payable, stock or other securities issued by account
debtors to the Company or any of its Restricted Subsidiaries pursuant to negotiated
agreements with respect to the settlement of such account debtor’s accounts, and
other Investments arising in connection with the compromise, settlement or
collection of accounts receivable, in each case in the ordinary course of business;
or




     (d) in the form of notes payable, stock or other securities that are received
in satisfaction of judgment;




     (8) Investments made as a result of the receipt of non-cash consideration from an Asset
Disposition that was made pursuant to and in compliance with Section 3.7 or any
other disposition of assets not constituting an Asset Disposition;




     (9) Investments in existence on the Issue Date, and any extension, modification,
replacement, or renewal of any such Investments existing on the Issue Date, but only to the
extent not involving additional advances, contributions or other Investments of cash or
other assets or other increases thereof (other than as a result of the accrual or accretion
of interest or original issue discount or the issuance of pay-in-kind securities, in each
case, pursuant to the terms of such Investment as in effect on the Issue Date);




     (10) any Person to the extent such Investments consist of Currency Agreements, Interest
Rate Agreements, Commodity Agreements and related Hedging Obligations, which transactions or
obligations are Incurred in compliance with Section 3.3;




     (11) Guarantees of Indebtedness issued in accordance with Section 3.3;




     (12) Investments made in connection with the funding of contributions under any
non-qualified retirement plan or similar employee compensation plan, including, without
limitation, split-dollar insurance policies, in an amount not to exceed the amount of
compensation expense recognized by the Company and its Restricted Subsidiaries in connection
with such plans;




     (13) stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any of its Restricted Subsidiaries
or in satisfaction of judgments or pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a debtor;



30









 






     (14) any Person to the extent such Investments consist of prepaid expenses, negotiable
instruments held for collection and lease, utility and workers’ compensation, performance
and other similar deposits made in the ordinary course of business by the Company or any of
its Restricted Subsidiaries;




     (15) prepayments and other credits to suppliers made in the ordinary course of
business;




     (16) endorsements of negotiable instruments and documents in the ordinary course of
business;




     (17) Investments by the Company or a Restricted Subsidiary in a Receivables Subsidiary
in connection with a Permitted Receivables Financing, which Investment is reasonably
determined by the Company as necessary or advisable to effect such Permitted Receivables
Financing;




     (18) Investments in the ordinary course of business consisting of endorsements for
collection or deposit and customary trade arrangements with customers consistent with past
practices;




     (19) Investments in any Person, including any joint venture, primarily engaged in any
Related Business, together with all other Investments pursuant to this clause (19), in an
aggregate amount at the time of such Investment not to exceed $75.0 million outstanding at
any one time (with the fair market value of such Investment being measured at the time made
and without giving effect to subsequent changes in value); and




     (20) Investments by the Company or any of its Restricted Subsidiaries, together with
all other Investments pursuant to this clause (20), in an aggregate amount at the time of
such Investment not to exceed, at any one time outstanding, the greater of (a) 2.5% of the
consolidated total assets of the Company (determined as of the end of the most recent fiscal
quarter of the Company for which financial statements of the Company are available) and (b)
$50.0 million (with the fair market value of such Investment being measured at the time made
and without giving effect to subsequent changes in value).



          “Permitted Liens” means, with respect to any Person:





     (1) Permitted Encumbrances;




     (2) Liens securing the Notes outstanding on the Issue Date, Refinancing Indebtedness
with respect to such Notes, the Note Guarantees relating thereto and any obligations with
respect to such Notes, Refinancing Indebtedness and Note Guarantees;




     (3) Liens securing Hedging Obligations to the extent that any First Lien Document
provides that such obligations are secured by First Lien Collateral; provided that the
related Indebtedness is Incurred pursuant to Section 3.3(b)(vii);




     (4) Liens securing Purchase Money Indebtedness; provided that (a) the related
Indebtedness is Incurred pursuant to Section 3.3(b)(viii) and (b) such Liens shall
not



31









 







extend to any asset other than the specified asset being financed and additions and
improvements thereon;




     (5) Liens existing on the Issue Date securing Indebtedness outstanding on the Issue
Date (other than Liens permitted under clause (2) or (3) above or clause (6), (8), (10),
(13), (14) or (15) below); provided that (a) such Lien shall not apply to any other property
or asset of the Company or any Restricted Subsidiary and (b) such Lien shall secure only
those obligations which it secures on the Issue Date and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof.




     (6) Liens on (a) any property or asset at the time the Company or any of its Restricted
Subsidiaries acquired the property or asset, including any acquisition by means of a merger
or consolidation with or into the Company or any of its Restricted Subsidiaries or (b) on
property or shares of stock of a Person at the time such Person becomes a Restricted
Subsidiary; provided that (i) such Liens are not created, Incurred or assumed in connection
with, or in contemplation of, such acquisition or such other Person becoming a Restricted
Subsidiary, as the case may be, (ii) such Liens shall not apply to any other property or
assets of the Company or any Restricted Subsidiary, (iii) such Liens shall secure only those
obligations which they secure on the date of such acquisition or the date such Person
becomes a Restricted Subsidiary, as the case may be, and extensions, renewals, refinancings
and replacements thereof that do not increase the outstanding principal amount thereof and
(iv) if such Liens secure Indebtedness, the aggregate principal amount of all Indebtedness
secured by Liens permitted by this clause (6) does not exceed $75.0 million at any time
outstanding;




     (7) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing
to the Company or another Restricted Subsidiary;




     (8) Liens securing Indebtedness Incurred by Foreign Subsidiaries and Liens arising
pursuant to a Permitted Receivables Financing on Receivables and Related Security of any
Foreign Subsidiary sold or financed in connection with such Permitted Receivables Financing;
provided that such Indebtedness or related Receivables Financing Debt is not guaranteed by
any Note Party;




     (9) Liens securing Refinancing Indebtedness Incurred to refinance, refund, replace,
amend, extend or modify, as a whole or in part, Indebtedness that was previously so secured
pursuant to clauses (5) and (9) of this definition; provided that any such Lien is limited
to all or part of the same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the Indebtedness being
refinanced or is in respect of property that is the security for a Permitted Lien hereunder;




     (10) Liens securing Indebtedness Incurred pursuant to Section 3.3(b)(xvi);
provided that such Liens attach only to the Collateral and are subject to the GM
Intercreditor Agreement or a Replacement Intercreditor Agreement;



32









 






     (11) Liens created pursuant to the GM Access Agreement;




     (12) Liens securing other obligations in an amount not to exceed $50.0 million at any
time outstanding; provided that (other than with respect to $25.0 million of such
obligations) such Lien shall not attach to Restricted Property and, if any such Lien
attaches to Collateral, such Lien shall be junior to the Liens granted pursuant to the
Collateral Documents;




     (13) Liens on cash collateral securing letters of credit outstanding pursuant to
Section 3.3(b)(xv) in an aggregate amount not to exceed the amount of letters of
credit that are cash collateralized on the Issue Date;




     (14) Liens securing Indebtedness and related obligations Incurred pursuant to
Section 3.3(b)(i);




     (15) assignments and sales of Receivables and Related Security pursuant to a Permitted
Receivables Financing and Liens arising pursuant to a Permitted Receivables Financing on
Receivables and Related Security sold or financed in connection with such Permitted
Receivables Financing; provided that the aggregate principal amount of all related
Receivables Financing Debt secured by Liens permitted by this clause (15) does not exceed
(a) $50.0 million at any time outstanding or (b) if, as of the date of Incurrence of the
related Receivables Financing Debt, after giving effect thereto and the application of
proceeds therefrom, the Consolidated Secured Debt Ratio of the Company and its Restricted
Subsidiaries would be less than 2.5:1.0, $100.0 million at any time outstanding; and




     (16) Liens securing Permitted Additional Pari Passu Obligations.



          “Permitted Receivables Factoring” means a factoring transaction pursuant to which the
Company or one or more of its Subsidiaries (or a combination thereof) sells (on a non-recourse
basis, other than Standard Securitization Undertakings) Receivables (and Related Security) for cash
consideration to a Person or Persons (other than to an Affiliate or to GM or any of its
Affiliates).




          “Permitted Receivables Financing” means a Permitted Receivables Securitization, a
Permitted Governmental Receivables Program or a Permitted Receivables Factoring.




          “Permitted Receivables Securitization” means transactions (other than pursuant to a
Permitted Governmental Receivables Program or Permitted Receivables Factoring) pursuant to which
the Company or one or more of its Subsidiaries (or a combination thereof) realizes cash proceeds in
respect of Receivables and Related Security by selling or otherwise transferring such Receivables
and Related Security (on a non-recourse basis with respect to the Company and its Subsidiaries,
other than Standard Securitization Undertakings) to one or more Receivables Subsidiaries, and such
Receivables Subsidiary or Receivables Subsidiaries realize cash proceeds in respect of such
Receivables and Related Security.




          “Permitted Second Lien Indebtedness” means the GM Second Lien Indebtedness and any
Refinancing Indebtedness Incurred to refinance any such Indebtedness.




33









 








          “Permitted Second Lien Replacement Indebtedness” means Refinancing Indebtedness
Incurred to refinance GM Second Lien Indebtedness and permitted under Section 3.3(b)(xvi).




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




          “Preferred Stock” means, as applied to the Capital Stock of any corporation, Capital
Stock of any class or classes (however designated) that is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of such Person.




          “Purchase Money Indebtedness” means Indebtedness, including Capitalized Lease
Obligations, of the Company or any of its Restricted Subsidiaries Incurred for the purpose of
financing all or any part of the purchase price of property, plant or equipment used in the
business of the Company or any of its Restricted Subsidiaries or the cost of installation,
construction or improvement thereof, and the payment of any sales or other taxes associated
therewith; provided, however, that (1) the amount of such Indebtedness shall not exceed such
purchase price or cost and payment and (2) such Indebtedness shall be Incurred within one year
after such acquisition of such asset by the Issuer or such Restricted Subsidiary or such
installation, construction or improvement.




          “QIB” means any “qualified institutional buyer” (as defined in Rule 144A under the
Securities Act).




          “Qualifying DIP Financing” means a DIP Financing provided, in whole or in part, by
First Lien Creditors that by its terms (a) is conditioned upon consummation of the GM Contract
Assumption on or prior to the last day of the Interim DIP Period, and (b) provides that such
condition cannot be waived without GM’s consent; provided that a DIP Financing will not be a
“Qualifying DIP Financing” unless, on or prior to the day that a motion is filed with the
bankruptcy court requesting an interim order approving such DIP Financing, a motion is filed with
the Bankruptcy Court, on behalf of the relevant Note Party or Note Parties, requesting an order
approving either (i) the assumption of the GM Agreements by the applicable Note Parties under
Section 365 of the Bankruptcy Code or (ii) authorizing the applicable Note Parties to enter into
the GM Agreements as post-petition contracts enforceable in accordance with their respective terms.




          “Rating Agencies” means Standard & Poor’s Ratings Group, Inc. and Moody’s Investors
Service, Inc. or if Standard & Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc. or
both shall not make a rating on the Notes publicly available, a nationally recognized statistical
Rating Agency or agencies, as the case may be, selected by the Company (as certified by a
resolution of the Board of Directors of the Company), which shall be substituted for Standard &
Poor’s Ratings Group, Inc. or Moody’s Investors Service, Inc. or both, as the case may be.




34









 








          “Receivable” means an Account owing to the Company or a Subsidiary of the Company
(before its transfer to a Receivables Subsidiary or to another Person), whether now existing or
hereafter arising, together with all cash collections and other cash proceeds in respect of such
Account, including all yield, finance charges or other related amounts accruing in respect thereof
and all cash proceeds of Related Security with respect to such Receivable.




          “Receivables Financing Debt” means, as of any date with respect to any Permitted
Receivables Financing, the amount of the outstanding uncollected Receivables subject to such
Permitted Receivables Financing that would not be returned, directly or indirectly, to the Company
or the Issuer, if all such Receivables were to be collected at such date and such Permitted
Receivables Financing were to be terminated at such date.




          “Receivables Subsidiary” means a wholly owned Subsidiary that does not engage in any
activities other than participating in one or more Permitted Receivables Securitizations and
activities incidental thereto; provided that (a) such Subsidiary does not have any Indebtedness
other than Indebtedness Incurred pursuant to a Permitted Receivables Securitization owed to
financing parties (including the Company or the applicable seller of Receivables) supported by
Receivables and Related Security and (b) neither the Company nor any Subsidiary Guarantor
Guarantees any Indebtedness or other obligation of such Subsidiary, other than Standard
Securitization Undertakings.




          “Record Date” for the interest and Defaulted Interest, if any, payable on any
applicable Interest Payment Date means January 1 or July 1 (whether or not a Business Day) next
preceding such Interest Payment Date.




          “Refinancing Indebtedness” means Indebtedness that is Incurred to refund, refinance,
replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge
mechanism) (collectively, “refinance,” “refinances,” and “refinanced” shall each have a correlative
meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture
(including Indebtedness of the Company that refinances Indebtedness of any of its Restricted
Subsidiaries and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another
Restricted Subsidiary (except that a Guarantor shall not refinance Indebtedness of a Restricted
Subsidiary that is not a Subsidiary Guarantor)), including Indebtedness that refinances Refinancing
Indebtedness; provided, however, that:





     (1) in the case of a refinancing of the GM Second Lien Indebtedness or if the Stated
Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the
Notes, the entire principal amount of the Refinancing Indebtedness has a Stated Maturity at
least 91 days later than the Stated Maturity of the Notes (other than in the case of a
refinancing of the Indebtedness of the Issuer evidenced by the Notes and of the Guarantors
evidenced by the Note Guarantees relating to the Notes pursuant to
Section 3.3(b)(ii), provided that such Refinancing Indebtedness is Incurred under a
Bank Credit Facility);




     (2) the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being refinanced at such time (other than in the case of a refinancing of



35









 







the Indebtedness of the Issuer evidenced by the Notes and of the Guarantors evidenced
by the Note Guarantees relating to the Notes pursuant to Section 3.3(b)(ii),
provided that such Refinancing Indebtedness is Incurred under a Bank Credit Facility);




     (3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to or less than
the sum of the aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus,
without duplication, any additional Indebtedness Incurred to pay interest, premiums required
by the instruments governing such existing Indebtedness or premiums necessary to effectuate
such refinancing and fees and expenses Incurred in connection therewith);




     (4) if the Indebtedness being refinanced is subordinated in right of payment to the
Notes or the Note Guarantee, such Refinancing Indebtedness is subordinated in right of
payment to the Notes or the Note Guarantee on terms at least as favorable, taken as a whole,
to the Holders as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and




     (5) Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor
Subsidiary that refinances Indebtedness of the Issuer or a Guarantor.



          “Related Business” means any business that is the same as or related, ancillary or
complementary to any of the businesses of the Company and its Restricted Subsidiaries on the Issue
Date.




          “Related Security” means, with respect to any Receivables subject to a Permitted
Receivables Financing, all assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
Receivables, including all collateral securing such Receivables, all contracts and all Guarantees
or other obligations in respect of such Receivables, and all proceeds of such Receivables.




          “Replacement Assets” means (1) capital expenditures or other non-current assets that
shall be used or useful in a Related Business or (2) substantially all the assets of a Related
Business or Voting Stock of any Person engaged in a Related Business that, when taken together with
all other Voting Stock of such Person owned by the Company and its Restricted Subsidiaries,
constitutes a majority of the Voting Stock of such Person and such Person shall become on the date
of acquisition thereof a Restricted Subsidiary.




          “Replacement Intercreditor Agreement” means an intercreditor agreement relating to any
Permitted Second Lien Replacement Indebtedness substantially in the form of Exhibit H attached to
the Revolving Credit Agreement as of the Issue Date.




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




          “Restricted Notes Legend” means the Private Placement Legend set forth in clause (A)
of Section 2.1(d) or the Regulation S Legend set forth in clause (B) of
Section 2.1(d), as applicable.




36









 








          “Restricted Period” means, in relation to the Initial Notes, the 40 consecutive days
beginning on and including the later of (A) the day on which the Initial Notes are offered to
persons other than distributors (as defined in Regulation S under the Securities Act) and (B) the
Issue Date and, in relation to any Additional Notes that are Restricted Notes, it means the
comparable period of 40 consecutive days.




          “Restricted Property” means any “Operating Property” or “shares of capital stock or
Debt issued by any Restricted Subsidiary and owned by the Company or Holdings, or any Restricted
Subsidiary,” in each case within the meaning of the Existing Senior Notes Indentures.




          “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary. The term “Restricted Subsidiary” includes the Issuer when referring to Restricted
Subsidiaries of the Company.




          “Revolving Credit Agreement” means the Amended and Restated Credit Agreement dated as
of January 9, 2004, as amended and restated as of the Issue Date, among the Issuer, the Company,
the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended,
restated or supplemented from time to time.




          “Sale/Leaseback Transaction” means any direct or indirect arrangement relating to
property now owned or hereafter acquired by the Company or any of its Restricted Subsidiaries
whereby the Company or such Restricted Subsidiary transfers such property to a Person (other than
the Company or any of its Subsidiaries) and the Company or such Restricted Subsidiary leases it
from such Person.




          “SEC” means the United States Securities and Exchange Commission.




          “Second Lien Documents” means the GM Second Lien Credit Agreement, each Second Lien
Security Document and any other document pursuant to which any Note Party guarantees any Second
Lien Obligations.




          “Second Lien Obligations” means all monetary obligations of the Issuer or any other
Note Party under the GM Second Lien Credit Agreement or under or in connection with any other
Second Lien Document.




          “Second Lien Security Documents” means, collectively, (a) the Existing Second Lien
Security Agreement; and (b) any other documents pursuant to which any Liens or other security
interests may from time to time be granted in any Collateral in favor of GM under or in connection
with any Second Lien Document, as each of the foregoing may be amended, supplemented, restated,
replaced, extended or otherwise modified from time to time. For certainty, the GM Access
Agreement, the GM Commercial Agreement and any purchase orders or supply agreements between GM and
any of the Note Parties are not Second Lien Security Documents.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.




37









 








          “Securitization Fees” means reasonable distributions or payments made directly or by
means of discounts with respect to any participation interest issued or sold in connection with,
and other fees paid to a Person that is not a Receivables Subsidiary in connection with, any
Permitted Receivables Financing.




          “Securitization Repurchase Obligation” means any obligation of a seller of Receivables
and Related Security in a Permitted Receivables Financing to repurchase Receivables and Related
Security arising as a result of a breach of a representation, warranty or covenant or otherwise
that are customary for an accounts receivable securitization transaction, including, without
limitation, as a result of a receivable or portion thereof becoming subject to any asserted
defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any
failure to take action by or any other event relating to the seller.




          “Senior Management” means any one of the Chief Executive Officer, the Chief Financial
Officer, any Vice President, the Treasurer or the Secretary of the Company.




          “Senior Obligations Cap” means an amount equal to the sum of the following:





     (1) the aggregate amount of the Commitments (as defined in the Revolving Credit
Agreement) in effect as of September 16, 2009; plus




     (2) the aggregate principal amount of loans outstanding under the Existing Term Loan
Agreement on September 16, 2009 less the amount of all repayments and prepayments (other
than pursuant to a refinancing with indebtedness that constitutes First Lien Obligations) of
principal of loans under the Existing Term Loan Agreement after September 16, 2009; plus




     (3) all unpaid interest (including, without limitation, post-petition interest),
premium, fees, expenses, indemnities and other amounts (other than (i) the principal amount
of any loans, advances or other debt under the First Lien Documents, except principal
amounts resulting from the capitalization or payment in kind of interest, premium, fees,
expenses, indemnities and similar amounts, and (ii) reimbursement obligations with respect
to letters of credit or similar instruments) that constitute First Lien Obligations.



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




          “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities made by the Company or any of its Subsidiaries in connection with a Permitted
Receivables Financing that are customary for Permitted Receivables Financings of the same type;
provided that Standard Securitization Undertakings shall not include any Guarantee of any
Indebtedness or collectability of any Receivables.




          “Stated Maturity” means, with respect to any security, the date specified in the
agreement governing or certificate relating to such security as the fixed date on which the final
payment of principal of such security is due and payable, including pursuant to any mandatory



38









 






redemption provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the payment thereof.




          “Subordinated Obligation” means any Indebtedness of the Issuer (whether outstanding on
the Issue Date or thereafter Incurred) that is expressly subordinated or junior in right of payment
to the Notes pursuant to a written agreement.




          “Subsidiary” of any Person means (a) any corporation, association or other business
entity (other than a partnership, joint venture, limited liability company or similar entity) of
which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof (or Persons performing similar functions) or (b) any partnership, joint venture,
limited liability company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited partnership interests,
as applicable, is, in the case of clauses (a) and (b), at the time owned or controlled, directly or
indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries of such Person or (3)
one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a
Subsidiary shall refer to a Subsidiary of the Company.




          “Subsidiary Guarantor” means each Restricted Subsidiary in existence on the Issue Date
that provides a Note Guarantee on the Issue Date (and any other Restricted Subsidiary that provides
a Note Guarantee in accordance with this Indenture); provided that upon release or discharge of
such Restricted Subsidiary from its Note Guarantee in accordance with this Indenture, such
Restricted Subsidiary ceases to be a Subsidiary Guarantor.




          “Trade Payables” means, with respect to any Person, any accounts payable to trade
creditors created, assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services




          “Treasury Rate” means the yield to maturity at the time of computation 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 Date to the First Call Date; provided, however, that if the period from the Redemption
Date to the First Call Date is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the period from
the Redemption Date to the First Call Date 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.




          “Trust Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time



39









 






shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such Person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.




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




          “Uniform Commercial Code” means the New York Uniform Commercial Code, as in effect
from time to time.




          “Unrestricted Subsidiary” means:





     (1) any Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors of the Company in the manner provided
below; and




     (2) any Subsidiary of an Unrestricted Subsidiary.



          The Board of Directors of the Company may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger or
consolidation or Investment therein) to be an Unrestricted Subsidiary only if:





     (1) such Subsidiary or any of its Subsidiaries does not own any Capital Stock or
Indebtedness of or have any Investment in, or own or hold any Lien on any property of, any
other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated or otherwise an Unrestricted Subsidiary; provided that an Unrestricted Subsidiary
may provide a Guarantee for the Notes;




     (2) all the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of
designation, and shall at all times thereafter, consist of Non-Recourse Debt; provided that
an Unrestricted Subsidiary may provide a Guarantee for the Notes;




     (3) such designation and the Investment of the Company in such Subsidiary complies with
Section 3.4;




     (4) such Subsidiary is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation:




     (a) to subscribe for additional Capital Stock of such Person; or




     (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results; and




     (5) on the date such Subsidiary is designated an Unrestricted Subsidiary, such
Subsidiary is not a party to any agreement, contract, arrangement or understanding with the
Company or any of its Restricted Subsidiaries with terms substantially less favorable



40









 







to the Company than those that might have been obtained from Persons who are not
Affiliates of the Company.



          Any such designation by the Board of Directors of the Company shall be evidenced to the
Trustee by filing with the Trustee a resolution of the Board of Directors of the Company giving
effect to such designation and an Officer’s Certificate certifying that such designation complies
with the foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary
shall be deemed to be Incurred as of such date.




          The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could Incur at least $1.00 of additional Indebtedness pursuant to
Section 3.3(a) on a pro forma basis taking into account such designation or the
Consolidated Coverage Ratio for the Company and its Restricted Subsidiaries would be equal to or
greater than such Consolidated Coverage Ratio prior to such designation.




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




          “Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors, managers or trustees, as
applicable, of such Person.




          “Wholly-Owned Subsidiary” means a Restricted Subsidiary, all of the Capital Stock of
which (other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.




41









 








          SECTION 1.2. Other Definitions.




	 	 	 	 	 
	 	 	 	Defined in
	Term	 	 	Section
	“Actual Knowledge”

	 	 	7.2(g)
	“Additional Notes”

	 	 	Recitals

	“Affiliate Transaction”

	 	 	3.8(a)
	“Agent Members”

	 	 	2.1(e)(iii)
	“Asset Disposition Offer”

	 	 	3.7(c)
	“Asset Disposition Offer Amount”

	 	 	3.7(d)(i)
	“Asset Disposition Offer Period”

	 	 	3.7(d)(i)
	“Asset Disposition Purchase Date”

	 	 	3.7(d)(i)
	“Authenticating Agent”

	 	 	2.2
	“Change of Control Offer”

	 	 	3.9(b)
	“Change of Control Payment”

	 	 	3.9(b)(i)
	“Change of Control Payment Date”

	 	 	3.9(b)(ii)
	“covenant defeasance option”

	 	 	8.1(b)
	“Defaulted Interest”

	 	 	2.13	 
	“Definitive Note Legend”

	 	 	2.1(d)(D)
	“Event of Default”

	 	 	6.1(a)
	“Excess Proceeds”

	 	 	3.7(c)
	“Global Note Legend”

	 	 	2.1(d)(C)
	“Global Notes”

	 	 	2.1(b)
	“Guarantor Obligations”

	 	 	10.1	 
	“Initial Notes”

	 	 	Recitals

	“Issuer Order”

	 	 	2.2	 
	“legal defeasance option”

	 	 	8.1(b)
	“Note Register”

	 	 	2.3	 
	“Notes”

	 	 	Recitals

	“Notice of Default”

	 	 	6.1(a)
	“Paying Agent”

	 	 	2.3	 
	“payment default”

	 	 	6.1(a)(vi)
	“Private Placement Legend”

	 	 	2.1(d)(A)
	“protected purchaser”

	 	 	2.9(b)
	“Redemption Date”

	 	 	5.4	 
	“Registrar”

	 	 	2.3	 
	“Regulation S”

	 	 	2.1(b)
	“Regulation S Global Note”

	 	 	2.1(b)
	“Regulation S Legend”

	 	 	2.1(d)(B)
	“Regulation S Notes”

	 	 	2.1(b)
	“Reinstatement Date”

	 	 	3.13(b)
	“Resale Restriction Termination Date”

	 	 	2.6(a)
	“Restricted Global Note”

	 	 	2.6(e)
	“Restricted Payment”

	 	 	3.4(a)
	“Rule 144A Global Note”

	 	 	2.1(b)
	“Rule 144A Notes”

	 	 	2.1(b)






42









 






	 	 	 	 	 
	 	 	 	Defined in
	Term	 	 	Section
	“Special Interest Payment Date”

	 	 	2.13(a)
	“Special Record Date”

	 	 	2.13(a)
	“Springing Maturity Offer”

	 	 	3.10(b)
	“Springing Maturity Payment”

	 	 	3.10(b)(i)
	“Springing Maturity Payment Date”

	 	 	3.10(b)(ii)

	“Successor Company”

	 	 	4.1(a)(i)
	“Successor Guarantor”

	 	 	4.3(a)(A)
	“Successor Issuer”

	 	 	4.2(a)(i)
	“Suspended Covenants”

	 	 	3.13(a)
	“Suspension Period”

	 	 	3.13(b)
	“Unrestricted Global Note”

	 	 	2.6(e)






          SECTION 1.3. Rules of Construction. Unless the context otherwise requires:





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




     (b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (c) “or” is not exclusive;




     (d) “including” means including without limitation;




     (e) words in the singular include the plural and words in the plural include the
singular;




     (f) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness;




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




     (h) unless the context otherwise requires, any reference to an “Article,” “Section” or
“clause” refers to an Article, Section or clause, as the case may be, of this Indenture; and




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



43









 





ARTICLE II




The Notes




          SECTION 2.1. Form, Dating and Terms. (a) The Initial Notes issued on the date hereof
shall be in an aggregate principal amount of $425,000,000. In addition, the Issuer may issue, from
time to time in accordance with the provisions of this Indenture, Additional Notes in the form of
Exhibit A hereto. In addition, Additional Notes may be authenticated and delivered, pursuant to
Section 2.6, 2.9, 2.11, 3.7, 3.9, 3.10 and
5.7.




          The Initial Notes shall be known and designated as “9.25% Senior Secured Notes due 2017” of
the Issuer. Additional Notes shall be known and designated as “9.25% Senior Secured Notes due
2017” of the Issuer.




          With respect to any Additional Notes, the Issuer shall set forth in (i) a Board Resolution and
(ii) (A) an Officer’s Certificate or (B) one or more indentures supplemental hereto, the following
information:





     (i) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture; and




     (ii) the issue price and the issue date of such Additional Notes.



          In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive
and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officer’s
Certificate required by Section 12.2, an Opinion of Counsel as to the due authorization,
execution, delivery, validity and enforceability of such Additional Notes.




          The Initial Notes and the Additional Notes shall be considered collectively as a single class
for all purposes of this Indenture. Holders of the Initial Notes and the Additional Notes shall
vote and consent together as one class on all matters to which such Holders are entitled to vote or
consent, and none of the Holders of the Initial Notes or the Additional Notes shall have the right
to vote or consent as a separate class on any matter to which such Holders are entitled to vote or
consent.





          (b) The Initial Notes are being offered and sold by the Issuer pursuant to a Purchase
Agreement, dated as of December 10, 2009, among the Issuer, the Company, the Subsidiary
Guarantors and J.P. Morgan Securities Inc., as representative of the initial purchasers. The
Initial Notes and any Additional Notes shall be resold initially only to (A) QIBs and (B)
Persons other than U.S. Persons (as defined in Regulation S under the Securities Act
(“Regulation S”)) in reliance on Regulation S. Such Initial Notes and Additional
Notes may thereafter be transferred to, among others, QIBs and purchasers in reliance on
Regulation S in accordance with the procedure described herein. Additional Notes offered
after the date hereof may be offered and sold by the Issuer from time to time pursuant to one
or more purchase agreements in accordance with applicable law.



          Initial Notes and Additional Notes offered and sold to QIBs in the United States of America in
reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a



44









 






permanent global Note substantially in the form of Exhibit A, which is hereby
incorporated by reference and made a part of this Indenture, including appropriate legends as set
forth in Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee,
as custodian for the Depositary, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate,
if so required by the Depositary’s rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time
to time be increased or decreased by adjustments made on the records of the Trustee, as custodian
for the Depositary or its nominee, as hereinafter provided.




          Initial Notes and any Additional Notes offered and sold outside the United States of America
(the “Regulation S Notes”) in reliance on Regulation S shall initially be issued in the
form of a permanent global Note substantially in the form of Exhibit A, which is hereby
incorporated by reference and made a part of this Indenture, including appropriate legends as set
forth in Section 2.1(d) (the “Regulation S Global Note”), deposited with the
Trustee, as custodian for the Depositary, duly executed by the Issuer and authenticated by the
Trustee as hereinafter provided. The Regulation S Global Note may be represented by more than one
certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the Regulation S Global
Note may from time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.




          The Rule 144A Global Note and the Regulation S Global Note are sometimes collectively herein
referred to as the “Global Notes.”




          The principal of (and premium, if any) and interest on the Notes shall be payable at the
office or agency of the Issuer maintained for such purpose in The City of New York, or at such
other office or agency of the Issuer as may be maintained for such purpose pursuant to Section
2.3; provided, however, that, at the option of the Issuer, each installment of interest (other
than with respect to Global Notes) may be paid by check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Note Register. Payments in respect of Notes
represented by a Global Note (including principal, premium, if any, and interest) shall be made by
wire transfer of immediately available funds to the accounts specified by the Depositary.




          The Notes may have notations, legends or endorsements required by law, stock exchange rule or
usage, in addition to those set forth on Exhibit A and in Section 2.1(d). The
Issuer and the Trustee shall approve the form of the Notes and any notation, endorsement or legend
on them. Each Note shall be dated the date of its authentication. The terms of the Notes set
forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable,
the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to be bound by such terms.





          (c) Denominations. The Notes shall be issuable only in fully registered form,
without coupons, and only in denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.



45









 






          (d) Restrictive Legends. (A) Each Rule 144A Global Note shall bear the
following legend (the “Private Placement Legend”) on the face thereof:




THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE
OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS
NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”)
ONLY (A) TO THE COMPANY, THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO CLAUSES (E) OR (F) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER



46









 







IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.



          (B) Each Regulation S Global Note shall bear the following legend (the “Regulation S
Legend”) on the face thereof:





THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE
OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS
NOTE AND THE GUARANTEES ENDORSED HEREON) (THE “RESALE RESTRICTION TERMINATION DATE”)
ONLY (A) TO THE COMPANY, THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO



47









 







CLAUSES (E) OR (F) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.




THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN).



          (C) The Global Notes, whether or not an Initial Note, shall bear the following legend (the
“Global Note Legend”) on the face thereof:





UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS 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.




TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.



          (D) Each Definitive Note shall bear the following legend (the “Definitive Note
Legend”) on the face thereof:





IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY



48









 







REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.




          (e) Book-Entry Provisions.



          (i) This Section 2.1(e) shall apply only to Global Notes deposited with the Trustee,
as custodian for the Depositary.




          (ii) Each Global Note initially shall (x) be registered in the name of the Depositary for such
Global Note or the nominee of such Depositary, (y) be delivered to the Trustee as custodian for
such Depositary and (z) bear legends as set forth in Section 2.1(d).




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




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




          (v) In connection with any transfer of a portion of the beneficial interest in a Global Note
pursuant to Section 2.1(f) to beneficial owners who are required to hold Definitive Notes,
the Trustee shall reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and
deliver, one or more Definitive Notes of like tenor and amount.




          (vi) In connection with the transfer of an entire Global Note to beneficial owners pursuant to
Section 2.1(f), such Global Note shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuer shall execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in such Global Note, an
equal aggregate principal amount of Definitive Notes of authorized denominations.




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




49









 









          (f) Definitive Notes. Except as provided below in Section 2.6(h), owners of
beneficial interests in Global Notes shall not be entitled to receive Definitive Notes. In
addition, Definitive Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in a Global Note if (i) the Depositary notifies the Issuer that it
is unwilling or unable to continue as depositary for such Global Note or the Depositary
ceases to be a clearing agency registered under the Exchange Act, at a time when the
Depositary is required to be so registered in order to act as Depositary, and in each case a
successor depositary is not appointed by the Issuer within 90 days of such notice or (ii) an
Event of Default has occurred and is continuing and the Registrar has received a request from
the Depositary.




          (g) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant
to Section 2.1(e)(v) or (vi) shall, except as otherwise provided by Section 2.6(c),
bear the applicable legend regarding transfer restrictions applicable to the Definitive Note
set forth in Section 2.1(d).




          (h) In connection with the exchange of a portion of a Definitive Note for a beneficial
interest in a Global Note, the Trustee shall cancel such Definitive Note, and the Issuer
shall execute, and the Trustee shall authenticate and deliver, to the transferring Holder a
new Definitive Note representing the principal amount not so transferred.



          SECTION 2.2. Execution and Authentication. Two Officers shall sign the Notes for the
Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.




          A Note shall not be valid until an authorized signatory of the Trustee manually authenticates
the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has
been duly and validly authenticated and issued under this Indenture. A Note shall be dated the
date of its authentication.




          At any time and from time to time after the execution and delivery of this Indenture, the
Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue on
the Issue Date in an aggregate principal amount of $425,000,000 and (2) subject to the terms of
this Indenture, Additional Notes, in each case upon a written order of the Issuer signed by an
Officer of the Issuer (the “Issuer Order”). Such Issuer Order shall specify the amount of
the Notes to be authenticated and the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes or Additional Notes.




          The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to
the Issuer to authenticate the Notes. Unless limited by the terms of such appointment, any such
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.




          In case the Issuer or any Guarantor, pursuant to Article IV, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of



50









 






its properties and assets substantially as an entirety to any Person, and the successor Person
resulting from such consolidation, or surviving such merger, or into which the Issuer or such
Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture supplemental hereto with
the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to
such consolidation, merger, conveyance, transfer, lease or other disposition may, from time to
time, at the request of the successor Person, be exchanged for other Notes executed in the name of
the successor Person with such changes in phraseology and form as may be appropriate, but otherwise
in substance of like tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Issuer Order of the successor Person, shall authenticate and deliver Notes as
specified in such order for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to this
Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes,
such successor Person, at the option of the Holders but without expense to them, shall provide for
the exchange of all Notes at the time outstanding for Notes authenticated and delivered in such new
name.




          SECTION 2.3. Registrar and Paying Agent. The Issuer shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency where Notes may be presented for payment (the
“Paying Agent”). The Issuer shall cause each of the Registrar and the Paying Agent to
maintain an office or agency in the Borough of Manhattan, The City of New York. The Registrar
shall keep a register of the Notes and of their transfer and exchange (the “Note
Register”). The Issuer may have one or more co-registrars and one or more additional paying
agents. The term “Paying Agent” includes any additional paying agent and the term “Registrar”
includes any co-registrar.




          The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent
not a party to this Indenture. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Issuer shall notify the Trustee of the name and address of each such
agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section 7.6. The
Issuer, the Company or any of its Subsidiaries may act as Paying Agent, Registrar or transfer
agent.




          The Issuer initially appoints the Trustee as Registrar and Paying Agent for the Notes. The
Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying
Agent and to the Trustee; provided, however, that no such removal shall become effective until (i)
acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into
by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to
the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying
Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or
Paying Agent may resign at any time upon written notice to the Issuer and the Trustee.




          SECTION 2.4. Paying Agent To Hold Money in Trust. By no later than 10:00 a.m. (New
York City time) on the date on which any principal of, premium, if any, or interest on any Note is
due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in



51









 






immediately available funds to pay such principal, premium, if any, or interest when due. The
Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the payment of principal of, premium, if any, or interest on the Notes and shall
notify the Trustee in writing of any default by the Issuer or any Guarantor in making any such
payment. If the Issuer, the Company or any of its Subsidiaries acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at
any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the
Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this
Section, the Paying Agent (if other than the Issuer, the Company or any of its Subsidiaries) shall
have no further liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as Paying
Agent for the Notes.




          SECTION 2.5. Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders.
If the Trustee is not the Registrar, the Issuer, on its own behalf and on behalf of each of the
Guarantors, shall furnish to the Trustee, in writing at least five 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
Holders.




          SECTION 2.6. Transfer and Exchange. (a) The following provisions shall apply with
respect to any proposed transfer of a Rule 144A Note prior to the date which is one year after the
later of the date of its original issue and the last date on which the Issuer or any Affiliate of
the Issuer was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction
Termination Date”):





     (i) a transfer of a Rule 144A Note or a beneficial interest therein to a QIB shall be
made upon the representation of the transferee, in the form of assignment as set forth on
the reverse of the Note, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Issuer as it has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and




     (ii) a transfer of a Rule 144A Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a certificate substantially
in the form set forth in Section 2.8 hereof from the proposed transferee and, if
requested by the Issuer or the Trustee, the delivery of an Opinion of Counsel, certification
and/or other information satisfactory to each of them.



52









 






          (b) The following provisions shall apply with respect to any proposed transfer of a
Regulation S Note prior to the expiration of the Restricted Period:




     (i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall
be made upon the representation of the transferee, in the form of assignment as set forth on
the reverse of the Note, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it and any such
account is a QIB, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Issuer as it has
requested pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and




     (ii) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a certificate substantially
in the form set forth in Section 2.8 hereof from the proposed transferee and, if
requested by the Issuer or the Trustee, the delivery of an Opinion of Counsel, certification
and/or other information satisfactory to each of them.



          After the expiration of the Restricted Period, interests in the Regulation S Note may be
transferred in accordance with applicable law without requiring the certification set forth in
Section 2.8 or any additional certification.





          (c) Restricted Notes Legend. Upon the transfer, exchange or replacement of
Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not
bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing
a Restricted Notes Legend, the Registrar shall deliver only Notes that bear such Restricted
Notes Legend unless there is delivered to the Registrar, if requested by the Registrar, an
Opinion of Counsel to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the Securities
Act. Any Additional Notes sold in a registered offering shall not be required to bear the
Restricted Notes Legend.




          (d) The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.1 or this Section 2.6. The
Company shall have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable written notice to
the Registrar.




          (e) Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not
Bearing Restricted Notes Legend. At the Issuer’s option, after the first anniversary of
the Issue Date and upon compliance with the following procedures, beneficial interests in a
Global Note bearing the Restricted Notes Legend (a “Restricted Global Note”) shall be
exchanged for beneficial interests in a Global Note not bearing the Restricted Notes Legend
(an “Unrestricted Global Note”). In order to effect such exchange, the Issuer shall
provide written notice to the Trustee instructing the Trustee to (1) direct the Depositary to
transfer the specified amount of the outstanding beneficial



53









 







interests in a particular Restricted Global Note to an Unrestricted Global Note and
provide the Depositary with all such information as is necessary for the Depositary to
appropriately credit and debit the relevant Holder accounts and (2) provide prior written
notice to all Holders of such exchange, which notice must include the date such exchange is
proposed to occur, the CUSIP number and ISIN of the relevant Restricted Global Note and the
CUSIP number and ISIN of the Unrestricted Global Note into which such Holders’ beneficial
interests shall be exchanged. As a condition to any such exchange pursuant to this
Section 2.6(e), the Trustee shall be entitled to receive from the Issuer, and rely
upon conclusively without any liability, an Officer’s Certificate and an Opinion of Counsel
to the Issuer, in form and in substance reasonably satisfactory to the Trustee, to the effect
that such transfer of beneficial interests to the Unrestricted Global Note shall be effected
in compliance with the Securities Act. The Issuer may request from Holders such information
it reasonably determines is required in order to be able to deliver such Officer’s
Certificate and Opinion of Counsel, including certification from Holders that they are not
Affiliates of the Issuer and have not knowingly acquired their beneficial interests in the
Restricted Global Note from any Affiliate of the Issuer. Upon such exchange of beneficial
interests pursuant to this Section 2.6(e), the Registrar shall reflect on its books
and records the date of such transfer and a decrease and increase, respectively, in the
principal amount of the applicable Restricted Global Note and the Unrestricted Global Note,
respectively, equal to the principal amount of beneficial interests transferred. Following
any such transfer pursuant to this Section 2.6(e) of all of the beneficial interests
in a Restricted Global Note, such Restricted Global Note shall be cancelled.




          (f) Obligations with Respect to Transfers and Exchanges of Notes. (i) To
permit registrations of transfers and exchanges, the Issuer shall, subject to the other terms
and conditions of this Article II, execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar’s request.



          (ii) No service charge shall be made to a Holder for any registration of transfer or exchange,
but the Issuer may require the Holder to pay a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charges payable upon exchange or transfer
pursuant to Section 3.7, 3.9, 3.10 or 5.7).



          (iii) The Registrar shall not be required to register the transfer or exchange of any Note for
a period beginning (1) 15 Business Days before the mailing of a notice of an offer to repurchase
Notes and ending at the close of business on the day of such mailing, (2) 15 Business Days before
an Interest Payment Date and ending on such Interest Payment Date or (3) 15 Business Days before
the day of any selection of Notes for redemption under Section 5.3 hereof.



          (iv) Prior to the due presentation for registration of transfer of any Note, the Issuer, the
Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving payment of principal of,
premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall
be affected by notice to the contrary.



54









 





          (v) All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the
Notes surrendered upon such transfer or exchange.




          (g) No Obligation of the Trustee. (i) The Trustee shall have no responsibility
or obligation to any beneficial owner of a Global Note, a member of, or a participant in, the
Depositary or other Person with respect to the accuracy of the records of the Depositary or
its nominee or of any participant or member thereof, with respect to any ownership interest
in the Notes, or with respect to the delivery to any participant, member, beneficial owner or
other Person (other than the Depositary) of any notice or the payment of any amount or
delivery of any Notes (or other security or property) under or with respect to such Notes.
All notices and communications to be given to the Holders and all payments to be made to
Holders in respect of the Notes shall be given or made only to or upon the order of the
registered Holders (which shall be the Depositary or its nominee in the case of a Global
Note). The rights of beneficial owners in any Global Note shall be exercised only through
the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee
may rely and shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.



          (ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof.





          (h) Affiliate Holders. Any Note or beneficial interest in a Global Note
transferred to an affiliate (such term as used in this clause (h) having the meaning given
Rule 405 under the Securities Act) of the Issuer or evidencing a Note that has been acquired
by an affiliate in a transaction or chain of transactions not involving any public offering
registered under the Securities Act shall, until one year after the last date on which either
the Issuer or any affiliate of the Issuer was an owner of such Note, be in the form of a
Definitive Note and bear the Private Placement Legend.



55









 





          SECTION 2.7. Reserved. 




          SECTION 2.8. Form of Certificate To Be Delivered in Connection with Transfers Pursuant to
Regulation S.




[Date]




American Axle & Manufacturing, Inc.

c/o U.S. Bank National Association

60 Livingston Avenue

EP-MN-WS3C

St. Paul, MN 55107-2292




Attention: Fast Desk





			
	     Re:	 	American Axle & Manufacturing, Inc.


9.25% Senior Secured Notes due 2017 (the “Notes”)





Ladies and Gentlemen:



          In connection with our proposed sale of $      aggregate principal amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with Regulation S under
the United States Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, we represent that:





     (a) the offer of the Notes was not made to a person in the United States;




     (b) either (i) at the time the buy order was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States or (ii) the transaction was executed in, on or
through the facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged with a buyer in
the United States;




     (c) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and




     (d) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.



          In addition, if the sale is made during a restricted period and the provisions of Rule
903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that
such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule
903(b)(3) or Rule 904(b)(1), as the case may be, and that the Notes transferred to the transferee
will be held immediately after such transfer through Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or Clearstream Banking, Societe Anonyme.




56









 








          We also hereby certify that we [are][are not] an affiliate (as defined in Rule 405 under the
Securities Act) of the Issuer and, to our knowledge, the transferee of the Notes [is][is not] an
affiliate (as defined in Rule 405 under the Securities Act) of the Issuer.




          You and the Issuer 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. Terms used in this
certificate have the meanings set forth in Regulation S.




Very truly yours,




[Name of Transferor]




By:             
                                                            

                          Authorized Signature




          SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Notes. If a mutilated Note is
surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee, upon Issuer Order, shall
authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code
are met such that the Holder (a) notifies the Issuer and the Trustee within a reasonable time after
such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not
registered a transfer prior to receiving such notification, (b) makes such request to the Issuer
prior to the Issuer having notice that the Note has been acquired by a protected purchaser as
defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and
(c) satisfies any other reasonable requirements of the Issuer and the Trustee. If required by the
Trustee or the Issuer, such Holder shall furnish an indemnity bond sufficient in the judgment of
the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent and the Registrar
from any loss which any of them may suffer if a Note is replaced; then, in the absence of notice to
the Issuer, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser,
the Issuer shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in
exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new
Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.




          In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.




          Upon the issuance of any new Note under this Section, the Issuer may require that such Holder
pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) in connection
therewith.




          Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Note shall constitute an original additional contractual obligation of the Issuer, any
Guarantor and any other obligor upon the Notes, whether or not the mutilated,



57









 






destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any and all other Notes
duly issued hereunder.




          The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Notes.




          SECTION 2.10. Outstanding Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. A Note does not cease to be
outstanding in the event the Issuer or an Affiliate of the Issuer holds the Note except that the
Issuer or an Affiliate of the Issuer shall not obtain voting rights with respect to such Note.




          If a Note is replaced pursuant to Section 2.9, it ceases to be outstanding unless the
Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a bona
fide purchaser.




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date money sufficient to pay all principal, premium, if any, and
interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or
maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after that date such
Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.




          SECTION 2.11. Temporary Notes. In the event that Definitive Notes are to be issued
under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Issuer
may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the Issuer considers
appropriate for temporary Notes. Without unreasonable delay, the Issuer shall prepare and the
Trustee shall authenticate Definitive Notes. After the preparation of Definitive Notes, the
temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at
any office or agency maintained by the Issuer for that purpose and such exchange shall be without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute, and the Trustee shall authenticate and make available for delivery in
exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes.
Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as a Holder of Definitive Notes.




          SECTION 2.12. Cancellation. The Issuer at any time may deliver Notes to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and return to the Issuer all Notes surrendered for registration of transfer, exchange,
payment or cancellation and deliver a certificate of such cancellation to the Issuer. The Issuer
may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation.




58









 








          At such time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be
returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged
for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed,
repurchased or canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made on the Global Note and on the books and records of the
Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note,
by the Trustee or the Notes Custodian, to reflect such reduction.




          SECTION 2.13. Payment of Interest; Defaulted Interest. Interest on any Note which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to
the Person in whose name such Note (or one or more predecessor Notes) is registered at the close of
business on the regular Record Date for such interest at the office or agency of the Issuer
maintained for such purpose pursuant to Section 2.3.




          Any interest on any Note which is payable, but is not paid when the same becomes due and
payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable
to the Holder on the regular Record Date by virtue of having been such Holder, and such defaulted
interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the
Notes (such defaulted interest and interest thereon herein collectively called “Defaulted
Interest”) shall be paid by the Issuer, at its election in each case, as provided in clause (a)
or (b) below:





     (a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective predecessor Notes) are registered at the close of
business on a Special Record Date (as defined below) for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date
(not less than 30 days after such notice) of the proposed payment (the “Special Interest
Payment Date”), and at the same time the Issuer shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Issuer shall fix a record date (the “Special Record Date”) for the
payment of such Defaulted Interest, which shall be not more than 15 days and not less than
10 days prior to the Special Interest Payment Date and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly
notify the Trustee of such Special Record Date, and the Issuer may request that the Trustee,
in the name and at the expense of the Issuer, cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to
be given in the manner provided for in Section 12.1, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so given, such
Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Notes (or their respective



59









 







Predecessor Notes) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (b).




     (b) The Issuer may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if, after notice given by
the Issuer to the Trustee of the proposed payment pursuant to this clause (b), such manner
of payment shall be deemed practicable by the Trustee.



          Notwithstanding the foregoing, if any such Interest Payment Date (other than an Interest
Payment Date at maturity) would otherwise be a day that is not a Business Day, then the interest
payment shall be postponed to the next succeeding Business Day (except if such Business Day falls
in the next succeeding calendar month, then interest shall be paid on the immediately preceding
Business Day). If the maturity date of the Notes is a day that is not a Business Day, all payments
to be made on such day shall be made on the next succeeding Business Day, with the same force and
effect as if made on the maturity date. In either of such cases, no additional interest shall be
payable as a result of such delay in payment.




          Subject to the foregoing provisions of this Section, each Note delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.




          SECTION 2.14. Computation of Interest. Interest on the Notes shall be computed on the
basis of a 360-day year of twelve 30-day months.




          SECTION 2.15. CUSIP Numbers and ISINs. The Issuer in issuing the Notes may use
“CUSIP” numbers and ISINs (in each case if then generally in use). The Trustee shall not be
responsible for the use of CUSIP numbers and ISINs and the Trustee makes no representation as to
their correctness as printed on any Note or notice to Holders. The Issuer shall promptly notify
the Trustee in writing of any change in the CUSIP numbers and ISINs.




ARTICLE III




Covenants




          SECTION 3.1. Payment of Notes. The Issuer shall promptly pay the principal of,
premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture. Principal, premium, if any, and interest shall be considered paid on the date
due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that
date pursuant to the terms of this Indenture.




          The Issuer shall pay interest on overdue principal at the rate specified therefor in the
Notes.




60









 








          Notwithstanding anything to the contrary contained in this Indenture, the Issuer may, to the
extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by
the United States of America from principal or interest payments hereunder.




          SECTION 3.2. SEC Reports. Notwithstanding that the Issuer may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, if not filed electronically with
the SEC through EDGAR (or any successor system), the Issuer shall provide to the Trustee and the
registered Holders of the Notes, within 15 days of the time periods specified in the relevant
forms:





     (1) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuer were required to
file such Forms (but, notwithstanding anything to the contrary in this covenant, without any
requirement at any time to provide separate financial statements of any Subsidiary of the
Issuer, including as may be required by Rule 3-10 or Rule 3-16 of Regulation S-X of the
Exchange Act), including a “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” and, with respect to the annual information only, a report on the
annual financial statements by the Issuer’s independent registered public accounting firm;
and




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


provided that, so long as the Company is a Guarantor of the Notes and is permitted by the
provisions of the Exchange Act, the reports, information and other documents required to be filed
and provided as described hereunder may, at the Issuer’s option, be filed by and be those of the
Company rather than the Issuer; provided further that the Company shall include in such report,
information or other document the information required by Regulation S-X of the Exchange Act with
respect to the Issuer (as well as a consolidating footnote for Guarantor and Non-Guarantor
presentation).




          Additionally, the Company shall cause such documents to be filed with the SEC unless the SEC
shall not accept such documents. The requirement for the Issuer to provide information may be
satisfied by posting such reports, documents and information on its website within the time periods
specified by this Section 3.2; provided, however, that the Company shall (upon request)
provide one copy of the foregoing to the Trustee and shall (upon request) provide additional copies
to any Holder or prospective Holder.




          In addition, the Issuer and the Guarantors shall make available to the Holders and to
prospective investors, upon the request of such Holders, the 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.




          The Company shall also hold a quarterly conference call for the Holders of the Notes to
discuss financial information for the previous quarter. The conference call shall be following the
last day of each fiscal quarter of the Company and not later than ten Business Days from the time
that the Company distributes the financial information as set forth in clause (1)



61









 






above. Prior to the conference call, the Company shall file a Current Report on Form 8-K
announcing the time and date of such conference call and providing instructions for holders of
Notes, securities analysts and prospective investors to obtain access to such call. For the
avoidance of doubt, the Company may satisfy the requirements of this paragraph by holding the
conference call required above within the time period required as part of any earnings call of the
Company in accordance with past practice.




          SECTION 3.3. Limitation on Indebtedness. (a) The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness); provided, however, that the Company and its Restricted
Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) if, on the date thereof and
after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio for the Company
and its Restricted Subsidiaries is at least 2.00 to 1.00.





          (b) The provisions of Section 3.3(a) shall not apply to the Incurrence of the
following Indebtedness:




     (i) Indebtedness of the Company and its Restricted Subsidiaries under the Credit
Facilities in an aggregate principal amount not to exceed $325.0 million at any time
outstanding less, to the extent a permanent repayment and/or commitment reduction is
required thereunder as a result of such application, the aggregate amount of Net Available
Cash applied to repayments under the Credit Facilities in accordance with
Section 3.7;




     (ii) Indebtedness of the Issuer evidenced by the Notes (other than Additional Notes)
and of the Guarantors evidenced by the Note Guarantees relating to the Notes (other than
Additional Notes), and Refinancing Indebtedness in respect thereof;




     (iii) Guarantees by (x) the Company, the Issuer or a Subsidiary Guarantor (including
any Restricted Subsidiary the Issuer elects to cause to become a Subsidiary Guarantor in
connection therewith) of Indebtedness permitted to be Incurred by the Company or any of its
Restricted Subsidiaries in accordance with the provisions of this Indenture; provided that
in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or a
Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right
of payment to the Notes or the Note Guarantee, as the case may be, and (y) Non-Guarantor
Subsidiaries of Indebtedness Incurred by Non-Guarantor Subsidiaries in accordance with the
provisions of this Indenture;




     (iv) Intercompany Indebtedness between or among the Company or any of its Restricted
Subsidiaries; provided, however,




     (A) if the Issuer is the obligor on Indebtedness owing to a Non-Guarantor
Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full
in cash of all obligations with respect to the Notes;




     (B) if a Guarantor is the obligor on such Indebtedness and a Non-Guarantor
Subsidiary is the obligee, such Indebtedness is subordinated in right of payment to
the Note Guarantees of such Guarantor; and



62









 






     (C) (1) any subsequent issuance or transfer of Capital Stock or any other event
that results in any such Indebtedness being beneficially held by a Person other than
the Company or a Restricted Subsidiary; and (2) any subsequent sale or other
transfer of any such Indebtedness to a Person other than the Company or a Restricted
Subsidiary shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness by the Company or such Subsidiary, as the case may be;




     (v) any Indebtedness (other than the Indebtedness described in clause (i) or (ii))
outstanding on the Issue Date, and any Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (v) or clause (vi) or Incurred pursuant to
Section 3.3(a);




     (vi) Indebtedness (a) of Persons Incurred and outstanding on the date on which such
Person became a Restricted Subsidiary or was acquired by, or merged into, the Company or any
of its Restricted Subsidiaries or (b) expressly assumed by the Company or any Restricted
Subsidiary in connection with the acquisition of an asset or assets from another Person, in
each case other than Indebtedness Incurred in connection with, or in contemplation of, such
acquisition; provided, however, that at the time such Person or asset is acquired by the
Company and after giving effect to the Incurrence of such Indebtedness pursuant to this
clause (vi), either (x) the Company would have been able to Incur $1.00 of additional
Indebtedness pursuant to Section 3.3(a) or (y) the Consolidated Coverage Ratio for
the Company and its Restricted Subsidiaries would be equal to or greater than such
Consolidated Coverage Ratio immediately prior to such acquisition;




     (vii) Indebtedness under Hedging Obligations; provided, however, that such Hedging
Obligations are entered into in the ordinary course of business (and not for speculative
purposes);




     (viii) Purchase Money Indebtedness Incurred by the Company or any of its Restricted
Subsidiaries, and Refinancing Indebtedness in respect thereof, in an aggregate principal
amount not to exceed the greater of (a) 2.5% of the consolidated total assets of the Company
(determined as of the end of the most recent fiscal quarter of the Company for which
financial statements of the Company are available) and (b) $50.0 million, at any time
outstanding;




     (ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in
respect of workers’ compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance, self-insurance obligations, performance, bid
surety, appeal and similar bonds and completion Guarantees (not for borrowed money) provided
in the ordinary course of business;




     (x) Indebtedness arising from agreements of the Company or any of its Restricted
Subsidiaries providing for indemnification, adjustment of purchase price, earn-outs or
similar obligations, in each case, Incurred or assumed in connection with the acquisition or
disposition of any business or assets of the Company or any business, assets or Capital
Stock of a Subsidiary, other than Guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for the purpose of



63









 







financing such acquisition; provided that the maximum aggregate liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds, including non-cash
proceeds (the fair market value of such non-cash proceeds being measured at the time
received and without giving effect to subsequent changes in value), actually received by the
Company and its Restricted Subsidiaries in connection with such disposition;




     (xi) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument, including, but not limited to, electronic transfers,
wire transfers and commercial card payments drawn against insufficient funds in the ordinary
course of business (except in the form of committed or uncommitted lines of credit);
provided, however, that such Indebtedness is extinguished within five Business Days of
Incurrence;




     (xii) Indebtedness Incurred by Foreign Subsidiaries and Receivables Financing Debt
attributable to Receivables of any Foreign Subsidiary in an aggregate principal amount,
together with all other Indebtedness Incurred pursuant to this clause (xii), not to exceed
the greater of (a) 17.5% of the aggregate total assets of the Foreign Subsidiaries
(determined as of the end of the most recent fiscal quarter of the Company for which
financial statements of the Foreign Subsidiaries are available) and (b) $175.0 million at
any time outstanding;




     (xiii) Receivables Financing Debt attributable to any Permitted Receivables Financing;




     (xiv) Indebtedness owed on a short-term basis of no longer than 30 days to banks and
other financial institutions Incurred in the ordinary course of business of the Company and
its Restricted Subsidiaries with such banks or financial institutions that arises in
connection with ordinary banking arrangements to manage cash balances of the Company and its
Restricted Subsidiaries;




     (xv) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a
letter of credit in reliance on clause (i) above (including letters of credit outstanding on
the Issue Date) in a principal amount not in excess of the stated amount of such letter of
credit;




     (xvi) GM Second Lien Indebtedness in an aggregate principal amount not to exceed $100.0
million, and any Refinancing Indebtedness Incurred to refinance any such Indebtedness;
provided that any such Refinancing Indebtedness may have an aggregate principal amount up to
$200.0 million; provided further that (a) any such Refinancing Indebtedness is not
Guaranteed by any Person that is not a Guarantor (and provides for release of any such
Guarantee by any Note Party upon release of its Note Guarantee) and (b) unless such
Refinancing Indebtedness is unsecured, a Replacement Intercreditor Agreement shall have been
executed and delivered in respect of such Refinancing Indebtedness and shall be binding upon
the holders thereof and any agent or trustee for such holders;



64









 






     (xvii) Indebtedness of the Company or any of its Restricted Subsidiaries to the extent
the proceeds of such Indebtedness are deposited and used to defease, covenant defease or
discharge the Notes as described in Section 8.1;




     (xviii) Indebtedness of the Company or any of its Restricted Subsidiaries to any
present, future or former officers, directors, employees and consultants of the Company and
its Restricted Subsidiaries, their respective Affiliates, estates, spouses, former spouses,
other immediate family member, successor, executor, administrator, heir, legatee or
distributee of any of the foregoing, in each case to finance the purchase or redemption of
Capital Stock of the Company to the extent permitted by Section 3.4(b)(v) upon
termination, disability or death; and




     (xix) in addition to the items referred to in clauses (i) through (xviii) above,
Indebtedness Incurred by the Company and any Restricted Subsidiary in an aggregate
outstanding principal amount which, when taken together with the principal amount of all
other Indebtedness Incurred pursuant to this clause (xix) and then outstanding, will not
exceed the greater of (a) 2.5% of the consolidated total assets of the Company (determined
as of the end of the most recent fiscal quarter of the Company for which financial
statements of the Company are available) and (b) $50.0 million.




          (c) For purposes of determining compliance with, and the outstanding principal amount of
any particular Indebtedness Incurred pursuant to and in compliance with, this
Section 3.3:




     (i) in the event that Indebtedness meets the criteria of more than one of the types of
Indebtedness described in Section 3.3(b) or could be Incurred pursuant to
Section 3.3(a), the Company, in its sole discretion, shall classify such item of
Indebtedness (or any portion thereof) on the date of Incurrence and may later reclassify
such item of Indebtedness (or any portion thereof) in any manner that complies with this
Section 3.3 and shall only be required to include the amount and type of such
Indebtedness once; provided that (a) Indebtedness under the Revolving Credit Agreement which
is in existence or available on or immediately prior to the Issue Date shall be deemed to be
outstanding in reliance on Section 3.3(b)(i) and may not later be reclassified and
(b) GM Second Lien Indebtedness which is in existence or available on or immediately prior
to the Issue Date shall be deemed to be outstanding in reliance on
Section 3.3(b)(xvi) and may not later be reclassified;




     (ii) Guarantees of, or obligations in respect of letters of credit or similar
instruments relating to, Indebtedness that is otherwise included in the determination of a
particular amount of Indebtedness shall not be included;




     (iii) the principal amount of any Disqualified Stock of the Company or any of its
Restricted Subsidiaries, or Preferred Stock of a Restricted Subsidiary that is not the
Issuer or a Subsidiary Guarantor, shall be equal to the greater of the maximum mandatory
redemption or repurchase price (not including, in either case, any redemption or repurchase
premium) or the liquidation preference thereof;



65









 






     (iv) Indebtedness permitted by this Section 3.3 need not be permitted solely by
reference to one provision permitting such Indebtedness but may be permitted in part by one
such provision and in part by one or more other provisions of this Section 3.3
permitting such Indebtedness; and




     (v) the amount of Indebtedness issued at a price that is less than the principal amount
thereof shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.


Accrual of interest, accrual of dividends, the accretion of accreted value or the amortization of
debt discount, the payment of interest in the form of additional Indebtedness and the payment of
dividends in the form of additional shares of Preferred Stock or Disqualified Stock shall not be
deemed to be an Incurrence of Indebtedness for purposes of this Section 3.3. The amount of
any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of
any Indebtedness issued with original issue discount or the aggregate principal amount outstanding
in the case of Indebtedness issued with interest payable-in-kind and (ii) the principal amount or
liquidation preference thereof, together with any interest thereon that is more than 30 days past
due, in the case of any other Indebtedness.





          (d) In addition, the Company shall not permit any of its Unrestricted Subsidiaries to
Incur any Indebtedness or issue any shares of Disqualified Stock, other than Non-Recourse
Debt. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any
Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as
of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under
this Section 3.3, the Company shall be in Default of this Section 3.3).




          (e) For purposes of determining compliance with any U.S. dollar-denominated restriction
on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of
term indebtedness, or first committed, in the case of revolving credit Indebtedness; provided
that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated
restriction to be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to
have been exceeded so long as the principal amount of such Refinancing Indebtedness does not
exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other
provision of this Section 3.3, the maximum amount of Indebtedness that the Company
and its Restricted Subsidiaries may Incur pursuant to this Section 3.3 shall not be
deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if
Incurred in a different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such Refinancing
Indebtedness is denominated that is in effect on the date of such refinancing.



66









 





          SECTION 3.4. Limitation on Restricted Payments. (a) The Company shall not, and shall
not permit any of its Restricted Subsidiaries, directly or indirectly, to:





     (i) declare or pay any dividend or make any distribution (whether made in cash,
securities or other property) on or in respect of its Capital Stock (including any payment
in connection with any merger or consolidation involving the Company or any of its
Restricted Subsidiaries) other than:




     (A) dividends or distributions payable solely in Capital Stock of the Company
(other than Disqualified Stock) or in options, warrants or other rights to purchase
such Capital Stock of the Company; and




     (B) dividends or distributions by a Restricted Subsidiary payable to the
Company or another Restricted Subsidiary (and if such Restricted Subsidiary is not a
Wholly-Owned Subsidiary, to its other holders of common Capital Stock on a pro rata
basis);




     (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the
Company held by Persons other than the Company or any of its Restricted Subsidiaries (other
than in exchange for Capital Stock of the Company (other than Disqualified Stock));




     (iii) make any principal payment on, or purchase, repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled maturity, scheduled repayment
or scheduled sinking fund payment, any Subordinated Obligations or Guarantor Subordinated
Obligations (other than (x) Indebtedness of the Company owing to and held by any of its
Restricted Subsidiaries or Indebtedness of the Issuer or a Subsidiary Guarantor owing to and
held by the Company or any of its Restricted Subsidiaries permitted under
Section 3.3(b)(iv) or (y) the purchase, repurchase or other acquisition of such
Subordinated Obligations or Guarantor Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of purchase, repurchase or acquisition); or




     (iv) make any Restricted Investment (all such payments and other actions referred to in
clauses (i) through (iv) (other than any exception thereto) shall be referred to as a
“Restricted Payment”), unless, at the time of and after giving effect to such
Restricted Payment:




     (1) no Default shall have occurred and be continuing (or would result therefrom);




     (2) immediately after giving effect to such transaction on a pro forma basis, the
Company is able to Incur $1.00 of additional Indebtedness under Section 3.3(a)
hereof; and




     (3) the aggregate amount of such Restricted Payment and all other Restricted Payments
declared or made subsequent to the Issue Date (excluding Restricted Payments



67









 







made pursuant to clauses (i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi),
(xii), (xiii) and (xiv) of Section 3.4(b)) would not exceed the sum of, without
duplication:




     (A) 50% of the aggregate Consolidated Net Income for the period (treated as one
accounting period) from October 1, 2009 to the end of the most recent fiscal quarter
ending prior to the date of such Restricted Payment for which financial statements
are available (or, in case such Consolidated Net Income is a deficit, minus 100% of
such deficit);




     (B) (i) 100% of the aggregate Net Cash Proceeds (other than Net Cash Proceeds
of the Concurrent Equity Offering) and the fair market value, as determined in Good
Faith by the Company, of marketable securities or other property received by the
Company from the issue or sale of its Capital Stock (other than Disqualified Stock)
(including upon the exercise of any options, warrants or rights to purchase Capital
Stock) or other capital contributions (other than in connection with the Concurrent
Equity Offering) subsequent to October 1, 2009, and (ii) 25% of the aggregate Net
Cash Proceeds of the Concurrent Equity Offering, in each case other than:




     (x) Net Cash Proceeds received from an issuance or sale of such Capital
Stock to a Subsidiary of the Company or to an employee stock ownership plan,
option plan or similar trust to the extent such sale to an employee stock
ownership plan or similar trust is financed by loans from or Guaranteed by
the Company or any of its Restricted Subsidiaries (unless such loans have
been repaid with cash on or prior to the date of determination); and




     (y) Net Cash Proceeds received by the Company from the issue and sale
of its Capital Stock or capital contributions to the extent applied to
redeem Notes in compliance with the provisions set forth under
Section 5.1(b);




     (C) the amount by which the principal amount of Indebtedness of the Company and
its Restricted Subsidiaries is reduced upon the conversion or exchange (other than
Indebtedness held by a Subsidiary of the Company) subsequent to the Issue Date of
any Indebtedness of the Company or its Restricted Subsidiaries for Capital Stock
(other than Disqualified Stock) of the Company (less the amount of any cash, or the
fair market value of any other property, distributed by the Company or a Restricted
Subsidiary upon such conversion or exchange);




     (D) (i) 100% of the Net Cash Proceeds and the fair market value of property
other than cash and marketable securities (such fair market value to be determined
in Good Faith by the Company) from the sale or other disposition (other than to the
Company or a Restricted Subsidiary) of Restricted Investments made after the Issue
Date and redemptions and repurchases of such Restricted Investments from the Company
or its Restricted Subsidiaries and repayment of



68









 







Restricted Investments in the form of loans or advances from the Company and
its Restricted Subsidiaries (other than in each case to the extent the Restricted
Investment was made pursuant to Section 3.4(b)(xi)) and (ii) the amount of
net reduction in Restricted Investments as a result of releases of Guarantees that
constitute Restricted Investments by the Company and its Restricted Subsidiaries ;




     (E) 100% of the Net Cash Proceeds and the fair market value of property other
than cash and marketable securities (such fair market value to be determined in Good
Faith by the Company) received by the Company or its Restricted Subsidiaries from
the sale (other than to the Company, the Issuer or a Restricted Subsidiary) of the
stock of an Unrestricted Subsidiary (other than in each case to the extent the
Investment in such Unrestricted Subsidiary was made by the Company or any of its
Restricted Subsidiaries pursuant to Section 3.4(b)(xi) or to the extent such
Investment constituted a Permitted Investment);




     (F) to the extent that any Unrestricted Subsidiary of the Company designated as
such after the Issue Date is redesignated as a Restricted Subsidiary or any
Unrestricted Subsidiary of the Company merges into or consolidates with the Company
or any of its Restricted Subsidiaries, in each case after the Issue Date, the fair
market value of such Subsidiary as of the date of such redesignation or such merger
or consolidation, or in the case of the transfer, dividend or distribution of assets
of an Unrestricted Subsidiary to the Company or any of its Restricted Subsidiaries,
the fair market value of such assets of the Unrestricted Subsidiary, as determined
in Good Faith by the Company at the time of the redesignation of such Unrestricted
Subsidiary as a Restricted Subsidiary or at the time of such merger, consolidation
or transfer of assets (other than an Unrestricted Subsidiary to the extent the
Investment in such Unrestricted Subsidiary was made by a Restricted Subsidiary
pursuant to Section 3.4(b)(xi) or to the extent such Investment constituted
a Permitted Investment); and




     (G) to the extent not included in Consolidated Net Income, 100% of the Net Cash
Proceeds and the fair market value of property other than cash and marketable
securities (such fair market value to be determined in Good Faith by the Company)
received by the Company or its Restricted Subsidiaries as a dividend or distribution
from an Unrestricted Subsidiary after the Issue Date representing the return of
capital.




     (b) The provisions of Section 3.4(a) hereof shall not prohibit:




     (i) any Restricted Payment made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company (other than (x) Disqualified
Stock, (y) Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan
or similar trust to the extent such sale to an employee stock ownership plan or similar
trust is financed by loans from or Guaranteed by the Company or any of its Restricted
Subsidiaries unless such loans have been repaid with cash on or prior to the date of
determination and (z) Common Stock issued or sold in the Concurrent Public



69









 







Offering); provided, however, that the Net Cash Proceeds from such sale of Capital
Stock shall be excluded from Section 3.4(a)(iv)(3)(B);




     (ii) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations or Guarantor Subordinated Obligations made by
exchange for or out of the proceeds of the substantially concurrent Incurrence of
Refinancing Indebtedness;




     (iii) any purchase, repurchase, redemption, defeasance or other acquisition or
retirement of Disqualified Stock of the Company or any of its Restricted Subsidiaries made
by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified
Stock of the Company or such Restricted Subsidiary, as the case may be, so long as such
refinancing Disqualified Stock is permitted to be Incurred pursuant to Section 3.3
and constitutes Refinancing Indebtedness;




     (iv) dividends paid within 60 days after the date of declaration if at such date of
declaration such dividend would have complied with this provision;




     (v) the purchase, redemption or other acquisition, cancellation or retirement for value
of Capital Stock, or options, warrants, equity appreciation rights or other rights to
purchase or acquire Capital Stock, of the Issuer, the Company or any Subsidiary of the
Company held by any present, future or former employee, director, officer or consultant (or
any Affiliate, spouse, former spouse, other immediate family member, successor, executor,
administrator, heir, legatee or distributee of any of the foregoing) of the Company or any
of its Subsidiaries pursuant to any employee, management or director benefit plan or any
agreement (including any stock subscription or shareholder agreement) with any employee,
director, officer or consultant of the Company or any of its Subsidiaries; provided that
such redemptions or repurchases pursuant to this clause (v) shall not exceed $10.0 million
in the aggregate during any calendar year, although such amount in any calendar year may be
increased by an amount not to exceed:




     (A) the Net Cash Proceeds from the sale of Capital Stock (other than
Disqualified Stock) of the Company to employees, directors, officers or consultants
of the Company or any of its Subsidiaries that occurs after the Issue Date, to the
extent the cash proceeds from the sale of such Capital Stock have not otherwise been
applied to the payment of Restricted Payments (provided that the Net Cash Proceeds
from such sales or contributions shall be excluded from
Section 3.4(a)(iv)(3)(B)); plus




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




     (C) the amount of any Restricted Payments previously made with the cash
proceeds described in clauses (A) and (B) of this clause (v);




and provided that cancellation of Indebtedness owing to the Company from members of
management of the Company and representing non-cash loans made by the Company to permit
members of management to acquire Capital Stock of the Company or any of its



70









 







Subsidiaries in connection with a repurchase of Capital Stock of the Company shall not be
deemed to constitute a Restricted Payment for purposes of this covenant;




     (vi) the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Company issued in accordance with the terms of this Indenture to
the extent such dividends are included in the definition of “Consolidated Interest Expense”;




     (vii) repurchases of Capital Stock deemed to occur (i) upon the exercise of stock
options, warrants, other rights to purchase Capital Stock or other convertible securities if
such Capital Stock represents a portion of the exercise price thereof or conversion price
thereof or (ii) in connection with withholdings or similar taxes payable by any future,
present or former employee, director or officer;




     (viii) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Obligation or Guarantor Subordinated Obligation at
a purchase price not greater than 101% of the principal amount of such Subordinated
Obligation or Guarantor Subordinated Obligation in the event of a Change of Control in
accordance with provisions similar to Section 3.9; provided that, prior to or
simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition
or retirement, the Issuer has made a Change of Control Offer and has completed the
repurchase or redemption of all Notes validly tendered for payment in connection with such
Change of Control Offer;




     (ix) cash payments in lieu of the issuance of fractional shares in connection with the
exercise of warrants, options or other securities convertible into or exchangeable for
Capital Stock of the Company or other exchanges of securities of the Company or any of its
Restricted Subsidiaries in exchange for Capital Stock of the Company; provided, however,
that any such cash payment shall not be for the purpose of evading the limitation of this
Section 3.4;




     (x) the repurchase, redemption, acquisition or retirement of Subordinated Obligations
or Guarantor Subordinated Obligations with Excess Proceeds remaining after an Asset
Disposition Offer pursuant to Section 3.7; or




     (xi) other Restricted Payments in an aggregate amount, which, when taken together with
all other Restricted Payments made pursuant to this clause (xi) (exclusive of amounts
included in Section 3.4(a)(iv)(3)(A)) not to exceed $15.0 million at any one time
outstanding;




     (xii) so long as no Default or Event of Default exists or would occur, payments or
distributions to stockholders pursuant to appraisal rights required under applicable law in
connection with any consolidation, merger or transfer of assets that complies with
Article IV;




     (xiii) distributions or payments of Securitization Fees and purchases of Receivables
and Related Security pursuant to a Securitization Repurchase Obligation in connection with a
Permitted Receivables Financing; or



71









 






     (xiv) the payment of any cash dividends on or in respect of Capital Stock of the
Company in an aggregate amount not to exceed $10.0 million in any calendar year; provided
that, as of the date of such payment, after giving pro forma effect thereto, the
Consolidated Secured Debt Ratio of the Company and its Restricted Subsidiaries would be less
than 2.5:1.0; and


provided, however, that at the time of and after giving effect to any Restricted Payment permitted
under clauses (vi), (x) or (xiv), no Default shall have occurred and be continuing or would occur
as a consequence thereof.





          (c) The amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of such Restricted Payment of the assets or securities proposed to be paid,
transferred or issued by the Company or such Restricted Subsidiary, as the case may be,
pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment
shall be its face amount and any non-cash Restricted Payment shall be determined conclusively
in Good Faith by the Company (provided that if such decision involves a determination of fair
market value in excess of $25.0 million, the decision is made in good faith by the Board of
Directors of the Company).




          (d) For purposes of determining compliance with this Section 3.4, in the event
that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one
of the categories of Restricted Payments described in clauses (i) through (xiv) of this
Section 3.4(b), or is entitled to be made pursuant to Section 3.4(a), the
Company shall be entitled to classify such Restricted Payment (or portion thereof) on the
date of its payment in any manner that complies with this Section 3.4.




          (e) As of the Issue Date, all of the Issuer’s Subsidiaries shall be Restricted
Subsidiaries. The Company shall not permit any Unrestricted Subsidiary to become a
Restricted Subsidiary except pursuant to the last sentence of the defined term “Unrestricted
Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted
Subsidiary, all outstanding Investments by the Company and its Restricted Subsidiaries
(except to the extent repaid) in the Subsidiary so designated shall be deemed to be
Restricted Payments in an amount determined as set forth in the definition of “Investment.”
Such designation shall be permitted only if a Restricted Payment in such amount would be
permitted at such time and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. Unrestricted Subsidiaries shall not be subject to any of the
restrictive covenants set forth in this Indenture.



          SECTION 3.5. Limitation on Liens. (a) The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any
Lien (other than Permitted Liens) that secures obligations under any Indebtedness on any asset or
property of the Company or such Restricted Subsidiary, including any Guarantee of such Restricted
Subsidiary, or any income or profits therefrom, or assign or convey any right to receive income
therefrom.





          (b) Notwithstanding whether or not a Lien would be a Permitted Lien, the Company shall
not, and shall not permit any of its Restricted Subsidiaries to, create, Incur,



72









 







assume or permit to exist any Indebtedness secured by a Lien (i) on any Restricted
Property that would utilize any of the Lien Basket Amount (to the extent such term is
applicable) under the Existing Senior Notes Indentures (other than (A) the obligations in
respect of the Notes, this Indenture and the Note Guarantees (and any Refinancing
Indebtedness in respect thereof), the obligations under the Revolving Credit Agreement (and
any Refinancing Indebtedness in respect thereof) and the obligations under any other Bank
Credit Facility, and (B) subject to the GM Intercreditor Agreement, the Permitted Second Lien
Indebtedness) or (ii) that would result in any obligations in respect of the Notes or this
Indenture to constitute Excess Senior Obligations (to the extent such term is applicable).



          SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create or otherwise cause or permit to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:





     (i) (A) 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 (B) pay any Indebtedness or other
obligations owed to the Company or any of its Restricted Subsidiaries (it being understood
that the priority of any Preferred Stock in receiving dividends or liquidating distributions
prior to dividends or liquidating distributions being paid on Common Stock shall not be
deemed a restriction on the ability to make distributions on Capital Stock);




     (ii) make any loans or advances to the Company or any of its Restricted Subsidiaries
(it being understood that the subordination of loans or advances made to the Company or any
of its Restricted Subsidiaries to other Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries shall not be deemed a restriction on the ability to make loans or
advances); or




     (iii) sell, lease or transfer any of its property or assets to the Company or any of
its Restricted Subsidiaries (it being understood that such transfers shall not include any
type of transfer described in clause (i) or (ii) of this Section 3.6(a)).




          (b) The restrictions in Section 3.6(a) shall not prohibit encumbrances or
restrictions existing under or by reason of:




     (i) any encumbrance or restriction pursuant to an agreement in effect at or entered
into on the Issue Date, including, without limitation, this Indenture, the Notes, the Note
Guarantees, the Collateral Documents, the Revolving Credit Agreement (and related
documentation), the GM Intercreditor Agreement and the Second Lien Documents (and related
documentation) in effect on such date, or any agreement governing Indebtedness that contains
encumbrances and restrictions that are not materially more restrictive, taken as a whole,
then those contained in this Indenture, the Note Guarantees, the Revolving Credit Agreement
and the Collateral Documents on the Issue Date;



73









 






     (ii) any encumbrance or restriction with respect to a Person pursuant to an agreement
relating to any Capital Stock of such Person or Indebtedness Incurred by such Person in
effect on or before the date on which such Person became a Restricted Subsidiary or was
acquired by, merged into or consolidated with the Company or any of its Restricted
Subsidiaries (other than Capital Stock issued or Indebtedness Incurred as consideration in,
or to provide all or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such Person became a
Restricted Subsidiary or was acquired by, merged into or consolidated with the Company or in
contemplation of the transaction) and outstanding on such date; provided that any such
encumbrance or restriction shall not extend to any Person or the assets or property of the
Company or any of its other Restricted Subsidiaries other than the Person and its
Subsidiaries or the assets and property so acquired and that, in the case of Indebtedness,
was permitted to be Incurred pursuant to this Indenture;




     (iii) any encumbrance or restriction pursuant to an agreement effecting a refunding,
replacement or refinancing of any Indebtedness Incurred pursuant to an agreement referred to
in clause (i) or (ii) of this Section 3.6(b) or this clause (iii) or contained in
any amendment, restatement, modification, renewal, supplement, refunding, extension,
replacement or refinancing of an agreement referred to in clause (i) or (ii) of this
Section 3.6(b) or this clause (iii); provided, however, that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained in any such agreement are
not materially more restrictive, taken as a whole, than the encumbrances and restrictions
contained in any applicable agreement referred to in clause (i) or (ii) of this
Section 3.6(b) on the Issue Date or the date such Restricted Subsidiary became a
Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;




     (iv) in the case of Section 3.6(a)(iii), (a) Liens permitted to be Incurred
under the provisions of Section 3.5 that apply only to the assets subject to such
Liens and (b) Receivables sold pursuant to any Permitted Receivables Financing;




     (v) (a) purchase money obligations for property acquired in the ordinary course of
business and (b) Capitalized Lease Obligations permitted under this Indenture, in each case,
that impose encumbrances or restrictions of the nature described in
Section 3.6(a)(iii) on the property so acquired;




     (vi) contracts for the sale of assets, including customary restrictions with respect to
a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale
of all or a portion of the Capital Stock or assets of such Subsidiary;




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




     (viii) any customary provisions in joint venture agreements relating to joint ventures
and other similar agreements entered into in the ordinary course of business; provided that,
if such joint venture is a Restricted Subsidiary, such provisions shall not



74









 







materially affect the Issuer’s ability to make anticipated principal or interest
payments on the Notes (as reasonably determined by the Company);




     (ix) any customary provisions in leases, subleases or licenses and other agreements
entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of
business;




     (x) encumbrances or restrictions arising or existing by reason of applicable law or any
applicable rule, regulation or order;




     (xi) encumbrances or restrictions contained in indentures or debt instruments or other
debt arrangements Incurred or Preferred Stock issued by Subsidiary Guarantors in accordance
with Section 3.3 that are not materially more restrictive, taken as a whole, than
those in effect on the Issue Date (which results in encumbrances or restrictions comparable
to those applicable to the Company at a Restricted Subsidiary level);




     (xii) any encumbrance or restriction with respect to a Receivables Subsidiary in
connection with a Permitted Receivables Financing; provided, however, that such encumbrances
and restrictions are necessary or advisable to effect the transactions contemplated under
such Permitted Receivables Financing (as reasonably determined by the Company);




     (xiii) any encumbrance or restriction contained in any agreement related to assets
acquired by the Company or any Restricted Subsidiary, so long as such encumbrance or
restriction (A) was not entered into in contemplation of the acquisition, and (B) is not
applicable to any Person, or the properties or assets of any Person, other than the property
or assets so acquired;




     (xiv) customary restrictions contained in (A) asset sale agreements that limit the
transfer of such assets pending the closing of such sale and (B) any other agreement for the
sale or other disposition of a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition; and




     (xv) encumbrances or restrictions contained in indentures or other debt instruments or
debt arrangements Incurred or Preferred Stock issued by Restricted Subsidiaries that are not
Subsidiary Guarantors subsequent to the Issue Date pursuant to clauses (vi), (xii), (xiii)
and (xix) of Section 3.3(b); provided that such encumbrances and restrictions
contained in any agreement or instrument shall not materially affect the Issuer’s ability to
make anticipated principal or interest payments on the Notes (as reasonably determined by
the Company).



          SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock. (a) The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition
following the Issue Date unless:





     (i) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at least equal to the fair market value (such fair market value to be
determined as of the date of contractually agreeing to such Asset Disposition), as



75









 







determined in Good Faith by the Company (including as to the value of all non-cash
consideration), of the assets subject to such Asset Disposition;




     (ii) at least 75% of the consideration from such Asset Disposition received by the
Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents or Replacement Assets or a combination thereof; and




     (iii) in the case of an Asset Disposition of Collateral, the remaining consideration
from such Asset Disposition that is not in the form of cash or Cash Equivalents is thereupon
with its acquisition pledged as Collateral to secure the Notes.




          (b) Any Net Available Cash received by the Company or any Restricted Subsidiary from any
Asset Disposition:




     (1) in the case of any Asset Disposition of Collateral, (A) shall be reinvested within
365 days in Replacement Assets; provided that to the extent the assets subject to such Asset
Disposition were Collateral, such newly acquired assets shall also be Collateral, or (B)
shall otherwise be used to make an Asset Disposition Offer (as defined below) in accordance
with Section 3.7(c); and




     (2) in the case of any Asset Disposition of assets not constituting Collateral, may be
applied (A) as provided in the immediately preceding clause (1) above or (B) within 365 days
of receipt of such Net Available Cash to permanently reduce any Indebtedness constituting
Indebtedness of a Non-Guarantor Subsidiary or to permanently reduce any unsubordinated
Indebtedness of the Company or any Guarantor (in each case owing to a Person other than the
Company or any Affiliate of the Company) (and, if the obligation repaid is revolving credit
Indebtedness, to correspondingly reduce loan commitments with respect thereto).


Pending the final application of any such Net Available Cash, the Company may temporarily reduce
Indebtedness or otherwise invest such Net Available Cash in any manner (other than to make a
Restricted Payment) that is not prohibited by this Indenture.





          (c) All Net Available Cash that is not applied or invested as provided in
Section 3.7(b) within the time periods set forth therein (or earlier if elected by
the Company) shall be deemed to constitute “Excess Proceeds.” When the aggregate
amount of Excess Proceeds exceeds $20.0 million, the Issuer shall be required to make an
offer (“Asset Disposition Offer”) to purchase from all Holders and, if applicable,
from holders of any other First Lien Obligations the provisions of which are similar to those
set forth in this Indenture with respect to Asset Dispositions, in an aggregate principal
amount of Notes and such other First Lien Obligations equal to the amount of such Excess
Proceeds. The offer price in any Asset Disposition Offer shall be equal to 100% of the
principal amount of the Notes (and 100% of the principal amount or, if different, the
accreted value of any other First Lien Obligations) plus accrued and unpaid interest to the
date of purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Disposition Offer, the Issuer may use those Excess Proceeds for any
purpose not otherwise prohibited by this Indenture and such remaining amount shall not be
added



76









 







to any subsequent Excess Proceeds for any purpose under this Indenture. If the aggregate
principal amount of the Notes and principal amount or, if different, accreted value of other
First Lien Obligations tendered into such Asset Disposition Offer exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and other First Lien Obligations to be
purchased on a pro rata basis. Upon completion of each Asset Disposition Offer, the amount
of Excess Proceeds shall be reset at zero.




          (d) (i) The Asset Disposition Offer shall remain open for a period of 20 Business Days
following its commencement, except to the extent that a longer period is required by
applicable law (the “Asset Disposition Offer Period”). No later than five Business
Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition
Purchase Date”), the Issuer shall purchase the principal amount of Notes required to be
purchased pursuant to this Section 3.7 (the “Asset Disposition Offer Amount”)
or, if less than the Asset Disposition Offer Amount has been so validly tendered, all Notes
validly tendered in response to the Asset Disposition Offer.



          (ii) If the Asset Disposition Purchase Date is on or after an interest Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall be paid on such
Asset Disposition Purchase Date to the Person in whose name a Note is registered at the close of
business on such Record Date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Disposition Offer.




          (iii) On or before the Asset Disposition Purchase Date, the Issuer shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition
Offer Amount of Notes or portions of Notes validly tendered and not properly withdrawn pursuant to
the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been validly
tendered and not properly withdrawn, all Notes validly tendered and not properly withdrawn, in each
case in denominations of $1,000 (except that no Note shall be purchased in part if the remaining
principal amount would be less than $2,000). The Issuer or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five Business Days after termination of the Asset
Disposition Offer Period) mail or deliver to each tendering Holder of Notes an amount equal to the
purchase price of the Notes validly tendered and not properly withdrawn by such holder and accepted
by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon
delivery of an Officer’s Certificate from the Issuer, shall authenticate and mail or deliver such
new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered; provided that each such new Note shall be in a principal amount of $2,000 or an
integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed
or delivered by the Issuer to the Holder thereof.





          (e) For the purposes of this Section 3.7, the following are deemed to be cash:
(x) except in the case of an Asset Disposition of Collateral, the assumption of Indebtedness
of the Company (other than Disqualified Stock or Subordinated Obligations) or Indebtedness of
any of its Restricted Subsidiaries (other than Guarantor Subordinated Indebtedness or
Disqualified Stock of any Subsidiary Guarantor) and the full and unconditional release of the
Company or such Restricted Subsidiary from all liability on such Indebtedness in connection
with such Asset Disposition and (y) securities, notes or



77









 







similar obligations received by the Company or any of its Restricted Subsidiaries from
the transferee that are converted within 180 days by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received).




          (f) The Company and the Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws or
regulations in connection with the repurchase of Notes pursuant to this Section 3.7.
To the extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 3.7, the Company and the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached
obligations of the Company and the Issuer described under this Section 3.7.



          SECTION 3.8. Limitation on Affiliate Transactions. (a) The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or
conduct any transaction (including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”)
unless:





     (i) the terms of such Affiliate Transaction are not materially less favorable to the
Company or such Restricted Subsidiary, as the case may be, than those that could be obtained
in a comparable transaction at the time of such transaction in arm’s-length dealings with a
Person who is not such an Affiliate;




     (ii) in the event such Affiliate Transaction involves an aggregate consideration in
excess of $25.0 million, the terms of such transaction have been approved by a majority of
the members of the Board of Directors of the Company and by a majority of the members of
such Board of Directors having no personal stake in such transaction, if any (and such
majority or majorities, as the case may be, determine that such Affiliate Transaction
satisfies the criteria in clause (i) above); and




     (iii) in the event such Affiliate Transaction involves an aggregate consideration in
excess of $50.0 million, the Company has received a written opinion from an Independent
Financial Advisor that such Affiliate Transaction is fair, from a financial point of view,
to the Company and its Restricted Subsidiaries or not materially less favorable than those
that might reasonably have been obtained in a comparable transaction at such time on an
arm’s-length basis from a Person that is not an Affiliate.




          (b) The provisions of Section 3.8(a) shall not apply to:




     (i) (x) any Restricted Payment permitted to be made pursuant to Section 3.4 and
(y) any Permitted Investment;




     (ii) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment agreements and other
compensation arrangements, options to purchase Capital Stock of the Company pursuant to
restricted stock plans, long-term incentive plans, stock appreciation rights plans,
participation plans or similar employee benefit plans, pension plans or similar plans or
agreements or arrangements, in each case entered into in the ordinary course of business;



78









 






     (iii) loans or advances to employees, officers or directors of the Company or any
Restricted Subsidiary in the ordinary course of business consistent with past practices;




     (iv) transactions among the Company and/or any Restricted Subsidiary and/or any entity
that is an Affiliate solely as a result of any Investment by the Company and/or such
Restricted Subsidiary in such entity;




     (v) the payment of reasonable and customary fees and compensation to, and employee
benefit arrangements, including, without limitation, split-dollar insurance policies, and
indemnity provided on behalf of, directors, officers and employees of the Company or any of
its Restricted Subsidiaries;




     (vi) the existence of and the performance of obligations of the Company or any of its
Restricted Subsidiaries under the terms of any agreement to which the Company or any of its
Restricted Subsidiaries is a party as of or on the Issue Date, as these agreements may be
amended, modified, supplemented, extended or renewed from time to time; provided, however,
that any future amendment, modification, supplement, extension or renewal entered into after
the Issue Date shall be permitted to the extent that its terms, taken as a whole, are not
more disadvantageous to the Company and its Restricted Subsidiaries in any material respect
than the terms of the applicable agreement in effect on the Issue Date;




     (vii) any agreement between any Person and an Affiliate of such Person existing at the
time such Person is acquired by or merged into the Company or any of its Restricted
Subsidiaries (provided that such agreement was not entered into in contemplation of such
acquisition or merger), or any amendment, modification, supplement, extension or renewal
thereto (so long as any such amendment, modification, supplement, extension or renewal,
taken as a whole, is not disadvantageous in any material respect to the Company and its
Restricted Subsidiaries as compared to the applicable agreement as in effect on the date of
such acquisition or merger);




     (viii) transactions with customers, clients, suppliers, joint venture partners or
purchasers or sellers of goods or services, in each case in the ordinary course of the
business of the Company and its Restricted Subsidiaries; provided that as determined in Good
Faith by the Company, such transactions are on terms, taken as a whole, that are not
materially 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;




     (ix) any purchases by the Company’s Affiliates of Indebtedness of the Company or any of
its Restricted Subsidiaries the majority of which Indebtedness is placed with Persons who
are not Affiliates;




     (x) any issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates
of the Company and the granting of registration and other customary rights in connection
therewith or any contribution to the Capital Stock of the Company or any of its Restricted
Subsidiaries;



79









 






     (xi) any Permitted Receivables Financing; and




     (xii) so long as any GM Second Lien Indebtedness is outstanding or any of the GM
Agreements, Second Lien Documents or GM Intercreditor Agreement is in full force and effect,
any transactions contemplated by the terms of such agreements between the Company or any
Restricted Subsidiary and GM and/or any of its Affiliates.



          SECTION 3.9. Change of Control. (a) If a Change of Control occurs, unless the Issuer
has exercised its right to redeem all of the Notes as pursuant to Section 5.1, each Holder
shall have the right to require the Issuer to repurchase all or any part (in integral multiples of
$1,000, except that no Note may be tendered in part if the remaining principal amount would be less
than $2,000) of such Holder’s Notes at a purchase price in cash equal to 101% of the principal
amount of the Notes plus accrued and unpaid interest, if any, to the date of purchase (subject to
the right of Holders of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date).





          (b) Within 30 days following any Change of Control, the Issuer shall mail a notice (the
“Change of Control Offer”) to each Holder at the address appearing in the Note
Register, with a copy to the Trustee, stating:




     (i) that a Change of Control Offer is being made and that such Holder has the right to
require the Issuer to purchase such Holder’s Notes at a purchase price in cash equal to 101%
of the principal amount of such Notes plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on a Record Date to receive interest
on the relevant Interest Payment Date) (the “Change of Control Payment”);




     (ii) the repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the “Change of Control Payment Date”); and




     (iii) the procedures determined by the Issuer, consistent with this Indenture, that a
Holder must follow in order to have its Notes repurchased.




          (c) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:




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




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




     (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Issuer.



80









 






          (d) The Paying Agent shall promptly mail to each Holder of Notes so tendered the Change
of Control Payment for such Notes, and the Trustee shall 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; provided that each such new Note
shall be in a principal amount of $2,000 or larger integral multiples of $1,000.




          (e) If the Change of Control Payment Date is on or after a Record Date and on or before
the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid on
the relevant Interest Payment Date to the Person in whose name a Note is registered at the
close of business on such Record Date, and no additional interest shall be payable to Holders
who tender pursuant to the Change of Control Offer.




          (f) The Change of Control provisions described above shall be applicable whether or not
any other provisions of this Indenture are applicable. The Issuer shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.




          (g) The Issuer shall not be required to make a Change of Control Offer upon a Change of
Control if (i) 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 Indenture applicable to a
Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer or (ii) a notice of redemption for all of the
outstanding Notes has been given pursuant to this Indenture unless and until there is a
default in payment of the applicable redemption price, plus accrued and unpaid interest to
the proposed Redemption Date. Notwithstanding anything to the contrary herein, a Change of
Control Offer may be made in advance of a Change of Control, conditional upon such Change of
Control, if a definitive agreement is in place for the Change of Control at the time of
making the Change of Control Offer.




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



          SECTION 3.10. Springing Maturity Offer. (a) If the GM Second Lien Indebtedness has
not been refinanced in full with Refinancing Indebtedness (or terminated and, if applicable, repaid
without any refinancing) on or prior to June 30, 2013, each Holder shall have the right to require
the Issuer to repurchase all or any part (in integral multiples of $1,000 except that no Note may
be tendered in part if the remaining principal amount would be less than $2,000) of such Holder’s
Notes on such date at a purchase price in cash equal to 100% of the principal amount of the Notes
plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders
of record on the relevant Record Date to receive interest due on the relevant Interest Payment
Date).




81









 









          (b) In the event the GM Second Lien Indebtedness has not been refinanced in full with
Refinancing Indebtedness (or terminated and, if applicable, repaid without any refinancing)
on or prior to June 30, 2013, the Issuer shall mail a notice (the “Springing Maturity
Offer”) thereafter, but no later than August 15, 2013, to each Holder at the address
appearing in the security register, with a copy to the Trustee, stating:




     (i) that a Springing Maturity Offer is being made and that such Holder has the right to
require the Issuer to purchase such Holder’s Notes on September 30, 2013 at a purchase price
in cash equal to 100% of the principal amount of such Notes plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders of record on a
Record Date to receive interest on the relevant Interest Payment Date) (the “Springing
Maturity Payment”);




     (ii) the repurchase date (which shall be September 30, 2013) (the “Springing
Maturity Payment Date”); and




     (iii) the procedures determined by the Issuer, consistent with this Indenture, that a
Holder must follow in order to have its Notes repurchased.




          (c) On the Springing Maturity Payment Date, the Issuer shall, to the extent lawful:




     (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the
Springing Maturity Offer;




     (ii) deposit with the Paying Agent an amount equal to the Springing Maturity Payment in
respect of all Notes or portions of Notes so tendered; and




     (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Issuer.



          Notwithstanding anything herein to the contrary, to the extent that the GM Second Lien
Indebtedness has been refinanced in full with Refinancing Indebtedness (or terminated and, if
applicable, repaid without any refinancing) on or prior to the Springing Maturity Payment Date, the
Issuer shall not be required to purchase Notes pursuant to the Springing Maturity Offer (whether or
not the GM Access Agreement is in effect).





          (d) The Paying Agent shall promptly mail to each Holder of Notes so tendered the
Springing Maturity Payment for such Notes, and the Trustee shall 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; provided that each such
new Note shall be in a principal amount of $2,000 or larger integral multiples of $1,000.




          (e) If the Springing Maturity Payment Date is on or after a Record Date and on or before
the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid on
the relevant Interest Payment Date to the Person in whose name a Note is



82









 







registered at the close of business on such Record Date, and no additional interest
shall be payable to Holders who tender pursuant to the Springing Maturity Offer.




          (f) The Issuer shall publicly announce the results of the Springing Maturity Offer on or
as soon as practicable after the Springing Maturity Payment Date.




          (g) The Issuer shall comply, to the extent applicable, with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws or regulations thereunder in
connection with the repurchase of Notes pursuant to a Springing Maturity Offer. To the
extent that the provisions of any securities laws or regulations conflict with provisions of
this Section 3.10, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this Indenture by
virtue of such conflict.



          SECTION 3.11. Future Subsidiary Guarantors. (a) The Company shall cause (i) each
Restricted Subsidiary that is a Non-Guarantor Subsidiary and that Guarantees any Indebtedness of
the Issuer or any Guarantor and (ii) each of its Restricted Subsidiaries (other than a Foreign
Subsidiary, an NWO Subsidiary, a Receivables Subsidiary or an Immaterial Non-Guarantor Subsidiary
if such Immaterial Non-Guarantor Subsidiary, together with all other Immaterial Non-Guarantor
Subsidiaries, collectively own not more than 2.5% of the Company’s consolidated total assets
(determined as of the end of the most recent fiscal quarter of the Company for which financial
statements of the Company are available)) that is formed or acquired following the Issue Date to
execute and deliver to the Trustee a supplemental indenture pursuant to which such Restricted
Subsidiary shall unconditionally Guarantee, on a joint and several basis, the full and prompt
payment of the principal of, premium, if any, and interest in respect of the Notes on a senior
secured basis and all other obligations under this Indenture. In addition, to the extent that the
Immaterial Non-Guarantor Subsidiaries collectively own, as of the date of the formation or
acquisition of or investment in an Immaterial Non-Guarantor Subsidiary, more than 2.5% of the
Company’s consolidated total assets (determined as of the end of the most recent fiscal quarter of
the Company for which financial statements of the Company are available), the Company shall cause,
within ten Business Days after such date, one or more of such Immaterial Non-Guarantor Subsidiaries
to execute and deliver to the Trustee a supplemental indenture pursuant to which such Immaterial
Non-Guarantor Subsidiary shall unconditionally Guarantee, on a joint and several basis, the full
and prompt payment of the principal of, premium, if any, and interest in respect of the Notes on a
senior secured basis and all other obligations under this Indenture such that the remaining
Immaterial Non-Guarantor Subsidiaries collectively own not more than 2.5% of the Company’s
consolidated total assets (determined as of the end of the most recent fiscal quarter of the
Company for which financial statements of the Company are available).





          (b) Each Restricted Subsidiary that becomes a Subsidiary Guarantor on or after the Issue
Date shall also as promptly as practicable satisfy the requirements in the Collateral
Agreement, this Indenture and the provisions in Section 3.17.



          SECTION 3.12. Limitation on Lines of Business. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, engage in any business other than a Related Business.




83









 








          SECTION 3.13. Effectiveness of Covenants. (a) If after the Issue Date (i) the Notes
have an Investment Grade Rating from both of the Ratings Agencies and (ii) no Default has occurred
and is continuing under this Indenture, (A) the Company, the Issuer and the Restricted Subsidiaries
shall not be subject to Sections 3.3, 3.4, 3.6, 3.7, 3.8,
3.11, 3.18, 4.1(a)(iv) and 4.2(a)(iv) (collectively, the
“Suspended Covenants”) and (B) the Issuer may elect to suspend the Note Guarantees and
release any or all of the Collateral from the Liens securing the Notes and the Note Guarantees.





          (b) If at any time the Notes’ credit rating is downgraded from an Investment Grade
Rating by any Rating Agency or if a Default or Event of Default occurs and is continuing,
then (i) the Suspended Covenants shall thereafter be reinstated as if such covenants had
never been suspended (the “Reinstatement Date”) and be applicable pursuant to the
terms of this Indenture (including in connection with performing any calculation or
assessment to determine compliance with the terms of this Indenture), unless and until the
Notes subsequently attain an Investment Grade Rating and no Default or Event of Default is in
existence (in which event the Suspended Covenants shall no longer be in effect for such time
that the Notes maintain an Investment Grade Rating and no Default or Event of Default is in
existence) and (ii) the Note Guarantees shall thereafter be reinstated and any Collateral
that was released from Liens securing the Notes and the Note Guarantees, as well as any
Collateral acquired since the Suspension Date, shall be restored and pledged to secure the
Notes and the Note Guarantees in accordance with the Collateral Agreement, the provisions of
Section 3.17 and this Indenture; provided, however, that no Default, Event of Default
or breach of any kind shall be deemed to exist or have occurred under this Indenture, the
Notes, the Note Guarantees or any Collateral Document with respect to the Suspended Covenants
(and any election to suspend the Note Guarantees and/or release any or all of the Collateral
from the Liens securing the Notes and the Note Guarantees) based on, and none of the Issuer,
the Company or any of its Subsidiaries shall bear any liability for, any actions taken or
events occurring during the Suspension Period (as defined below), or any actions taken at any
time pursuant to any contractual obligation arising prior to the Reinstatement Date,
regardless of whether such actions or events would have been permitted if the applicable
Suspended Covenants remained in effect during such period. The period of time between the
date of suspension of the covenants and the Reinstatement Date is referred to as the
“Suspension Period.”




          (c) On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period
shall be classified to have been Incurred pursuant to Section 3.3(a) or one of the
clauses (other than clause (xix), which shall be deemed unused as of such date) set forth in
Section 3.3(b) (to the extent such Indebtedness would be permitted to be Incurred
thereunder as of the Reinstatement Date and after giving effect to Indebtedness Incurred
prior to the Suspension Period and outstanding on the Reinstatement Date). To the extent
such Indebtedness would not be so permitted to be Incurred pursuant to Section 3.3(a)
or one of the clauses (other than clause (xix), which shall be deemed unused as of such date)
set forth in Section 3.3(b), such Indebtedness shall be deemed to have been
outstanding on the Issue Date, so that it is classified as permitted under
Section 3.3(b)(v). Calculations made after the Reinstatement Date of the amount
available to be made as Restricted Payments under Section 3.4 shall be made as though
Section 3.4 had been in effect since the Issue Date and throughout the Suspension
Period.



84









 







Accordingly, Restricted Payments made during the Suspension Period not otherwise
permitted under Section 3.4(b) shall reduce the amount available to be made as Restricted
Payments under Section 3.4(a); provided that the amount available to be made as
Restricted Payments on the Reinstatement Date shall not be reduced to below zero solely as a
result of such Restricted Payments. In addition, events during the Suspension Period that
would have increased the amount available to be made as Restricted Payments if not for the
suspension of such covenants shall increase the amount available to be made as Restricted
Payments under Section 3.4(a).




          (d) During any period when the Suspended Covenants are suspended, the Board of Directors
of the Company may not designate any of the Company’s Subsidiaries as Unrestricted
Subsidiaries pursuant to this Indenture.



          SECTION 3.14. Compliance Certificate. The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating
whether or not the signer knows of any Default or Event of Default that occurred during such fiscal
year. If he does, the certificate shall describe the Default or Event of Default, its status and
what action the Company is taking or proposes to take with respect thereto.




          SECTION 3.15. Statement by Officer as to Default. The Company shall deliver to the
Trustee, within 30 days after the knowledge thereof, written notice of any Event of Default or any
event which, with notice or the lapse of time or both, would constitute an Event of Default under
Section 6.1(a)(i), (ii), (iii), (iv), (v), (vi),
(ix), (x) or (xi), which shall include their status and what action the
Company is taking or proposing to take in respect thereof.




          SECTION 3.16. Payment for Consents. The Company shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of any Notes for or as an inducement to any consent, waiver or amendment
of any of the terms or provisions of this Indenture or the Notes unless such consideration is
offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent, waiver or
amendment.




          SECTION 3.17. Further Assurances. (a) From and after the Issue Date, the Issuer and
the Company shall take, and shall cause each of the Subsidiary Guarantors to take, any and all
actions required to cause the Notes issued hereunder to be secured by a valid and enforceable
perfected first-priority Lien on all the Collateral in favor of the Collateral Agent for the
ratable benefit of the Holders, subject to Permitted Liens. As of the Issue Date, each Note Party
shall have complied with the requirements of the Collateral Agreement and this Indenture.





          (b) Notwithstanding the foregoing, the Company and the Guarantors shall deliver to the
Collateral Agent as promptly as reasonably practicable after the Issue Date but in any event
(1) within 60 Business Days of the Issue Date (subject to extension in the sole discretion of
the Collateral Agent), (i) counterparts of each Mortgage to be entered into with respect to
each Mortgaged Property, duly executed and delivered by the record owner of such property and
suitable for recording or filing, (ii) a policy or policies of title



85









 







insurance issued by a nationally recognized title insurance company in an amount
reasonably acceptable to the Collateral Agent, insuring the Lien of the Mortgage with respect
to such Mortgaged Property as a valid and enforceable first Lien on such Mortgaged Property
described therein, free of any other Liens except Permitted Liens, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request,
(iii) if any Mortgaged Property is located in an area determined by the Federal Emergency
Management Agency to have special flood hazards, evidence of such flood insurance as may be
required under applicable law, including Regulation H of the Board of Governors, and (iv)
land surveys, legal opinions of local counsel in the jurisdiction where such Mortgaged
Property is located and other documents as the Collateral Agent may reasonably request with
respect to any such Mortgage or Mortgaged Property; and (2) within 45 Business Day of the
Issue Date (subject to extension in the sole discretion of the Collateral Agent),
counterparts of each pledge agreement to be entered into in connection with the pledge of the
Voting Stock of the Foreign Subsidiaries organized in Brazil, Luxembourg and Scotland, and
all other documents and instruments required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens in such Voting Stock and to
perfect such Liens to the extent required by, and with the priority required by, this
Indenture and the Collateral Documents.




          (c) After the Issue Date, the Company and the Issuer shall, and shall cause each
Subsidiary Guarantor and any Person that becomes a Note Party to, execute any and all further
documents, financing statements, agreements and instruments and take all actions and any
further actions (including (1) the execution and delivery of a supplement to the Collateral
Agreement (substantially in the form specified in the Collateral Agreement and otherwise
consistent with such supplement entered into pursuant to the Revolving Credit Agreement, if
applicable) and counterparts of a Mortgage with respect to each Mortgaged Property duly
executed and delivered by the record owner of such Mortgaged Property, (2) the pledge of
Capital Stock of each Subsidiary owned by or on behalf of any Note Party pursuant to the
Collateral Agreement (other than (x) in addition to any exceptions set forth in the
Collateral Agreement, Capital Stock of any NWO Subsidiary to the extent that such pledge
requires the consent of any other holder of Capital Stock in such NWO Subsidiary and such
consent has not been obtained (it being understood that commercially reasonable efforts will
be made by the Company and its Subsidiaries to obtain such consent) and (y) more than 66% of
the Voting Stock of any Foreign Subsidiary), (3) with respect to each Mortgaged Property,
(i) delivery of a policy or policies of title insurance issued by a nationally recognized
title insurance company in an amount reasonably acceptable to the Collateral Agent, insuring
the Lien of the Mortgage with respect to such Mortgaged Property as a valid and enforceable
first Lien on such Mortgaged Property described therein, free of any other Liens except
Permitted Liens, together with such endorsements, coinsurance and reinsurance as the
Collateral Agent may reasonably request, (ii) to the extent located in an area determined by
the Federal Emergency Management Agency to have special flood hazards, delivery of evidence
of such flood insurance as may be required under applicable law, including Regulation H of
the Board of Governors and (iii) delivery of such land surveys, legal opinions of local
counsel in the jurisdiction where such Mortgaged Property is located and other documents as
the Collateral Agent may reasonably request with respect to any such



86









 







Mortgage or Mortgaged Property, delivery of promissory notes (and the pledge of such
promissory notes pursuant to the Collateral Agreement) evidencing all Indebtedness of the
Company and of each of its Subsidiaries that is owing to any Note Party (together with any
promissory note evidencing Indebtedness of any other Person owing to a Note Party in a
principal amount exceeding $10.0 million), together with undated instruments of transfer
endorsed in blank (provided that no Indebtedness of a Foreign Subsidiary owing to a Note
Party will be required to be evidenced by a promissory note if, and for so long as, under the
laws of the applicable jurisdiction where such Foreign Subsidiary is organized, promissory
notes are not recognized as an instrument for evidencing Indebtedness, unless a promissory
note or other instrument is created to evidence such Indebtedness), and (4) the filing and
recording of financing statements and any other documents), which may be required under any
applicable law, or which the Trustee or the Collateral Agent may reasonably request to cause,
and to maintain, the creation or perfection (with the required priority) of pledges of or
security interests in the Collateral or, pursuant to Section 3.18, in any material assets, or
otherwise to effectuate the provisions of this Indenture and the Collateral Documents, all at
the expense of the Note Parties.




          (d) This Section 3.17 shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of title insurance, legal opinions or other
deliverables with respect to, particular assets of the Notes Parties, if, and for so long as,
the Company reasonably determines in good faith that the cost of creating or perfecting such
pledges or security interests in such assets, or obtaining such title insurance, legal
opinions or other deliverables in respect of such assets, shall be excessive in view of the
benefits to be obtained by the Holders therefrom.




          (e) After the Issue Date, extensions of time may be granted by the Collateral Agent for
the creation and perfection of security interests in or the obtaining of title insurance,
legal opinions or other deliverables with respect to particular assets (including in
connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) if
the Company reasonably determines in good faith that such action cannot be accomplished
without undue effort or expense by the time or times at which it would otherwise be required
to be accomplished by this Indenture or the Collateral Documents. Any determination made by
the Company pursuant to this clause (e) shall be delivered in writing, along with supporting
documentation justifying such determination, to the Trustee and the Collateral Agent as
promptly as practicable following such determination by the Company.




          (f) This Section 3.17 shall not be construed to require any Subsidiary that is not a
Note Party (including any Foreign Subsidiary) to grant any Lien on or otherwise pledge its
assets to secure the Notes or the Note Guarantees.




          (g) To the extent that any asset that does not already constitute Collateral is pledged
to secure any First Lien Obligations, the Company and the Issuer shall, and shall cause each
Subsidiary Guarantor and any Person that becomes a Note Party to, pledge such asset to secure
the Notes and the Note Guarantees on a first-priority basis and such asset will thereafter be
deemed to be part of the Collateral.



87









 





          SECTION 3.18. After Acquired Property. If any material assets (including any real
property or improvements thereto or any interest therein having an aggregate fair market value or
purchase price exceeding $25.0 million other than leasehold interests in real property not owned by
a Note Party) are acquired by any Note Party after the Issue Date (other than (i) assets
constituting Collateral under the Collateral Agreement that become subject to the Lien of the
Collateral Agreement upon acquisition thereof and (ii) assets excluded from Liens of the Collateral
Documents pursuant to the terms thereof), the Issuer shall notify the Collateral Agent thereof,
and, if requested by the Collateral Agent, the Company and the Issuer shall cause such assets to be
subjected to a Lien securing the Notes and the Note Guarantees (in the same manner as Collateral
under the Collateral Documents secures the Notes and the Note Guarantees) and shall take, and cause
the Note Parties to take, such actions as shall be necessary or reasonably requested by the
Collateral Agent to cause the requirements in the Collateral Documents and this Indenture
(including Section 3.17) to be satisfied with respect to such assets, all at the expense of the
Note Parties.




          SECTION 3.19. Information Regarding Collateral. (a) The Company or the Issuer shall
furnish to the Trustee and the Collateral Agent prompt written notice of any change (i) in the
legal name of any Note Party, as set forth in its organizational documents, (ii) in the
jurisdiction of organization or the form of organization of any Note Party (including as a result
of any merger or consolidation), or (iii) in the organizational identification number, if any, or,
with respect to any Note Party organized under the laws of a jurisdiction that requires such
information to be set forth on the face of a Uniform Commercial Code financing statement, the
Federal Taxpayer Identification Number of such Note Party. The Company and the Issuer shall not
effect or permit any change referred to in the preceding sentence unless all filings have been made
under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and perfected security
interest in all the Collateral.





          (b) Each year, at the time of delivery or filing of annual financial statements with
respect to the preceding fiscal year, the Issuer shall deliver to the Trustee and the
Collateral Agent a certificate of a financial officer setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no change in such
information since the date of the prior delivered Perfection Certificate.




          (c) The Company and the Issuer shall (i) furnish to the Trustee and the Collateral Agent
prompt written notice of any casualty or other insured damage to any material portion of the
Collateral or the commencement of any action or proceeding for the taking of any material
portion of the Collateral under power of eminent domain or by condemnation or similar
proceeding and (ii) ensure that the net proceeds of any such event (whether in the form of
insurance proceeds, condemnation awards or otherwise) are collected and applied in accordance
with the applicable provisions of the Collateral Documents.



          SECTION 3.20. Impairment of Security Interest. Subject to the rights of the holders
of Permitted Liens, the Company shall not, and shall not permit any of its Restricted Subsidiaries
to, take or knowingly or negligently omit to take, any action which action or



88









 






omission would reasonably be expected to have the result of materially impairing the security
interest with respect to the Collateral for the benefit of the Holders.




          SECTION 3.21. Maintenance of Properties; Insurance. The Company shall, and shall
cause each of its Restricted Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and tear excepted, and
(b) maintain, with financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are reasonable and prudent, as well as such insurance as is required by
any Collateral Document.




ARTICLE IV




Successor Company and Successor Guarantor




          SECTION 4.1. When Company May Merge or Otherwise Dispose of Assets. (a) The Company
shall not consolidate with or merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its properties and assets, in one or more related transactions, to any Person unless:





     (i) if other than the Company, the resulting, surviving or transferee Person (the
“Successor Company”) shall be a corporation, limited liability company or
partnership organized and existing under the laws of the United States of America, any State
of the United States of America, the District of Columbia or any other territory thereof;
provided that there shall be an obligor or a co-obligor that is a corporation;




     (ii) the Successor Company (if other than the Company) assumes pursuant to a
supplemental indenture or other documentation instruments, executed and delivered to the
Trustee, in forms reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Notes, the Note Guarantees, this Indenture, the GM Intercreditor Agreement
and the Collateral Documents (as applicable) and shall cause such amendments, supplements or
other instruments to be executed, filed and recorded in such jurisdictions as may be
required by applicable law to preserve and protect the Lien on the Collateral owned by or
transferred to the Successor Company, together with such financing statements or comparable
documents as may be required to perfect any security interests in such Collateral which may
be perfected by the filing of a financing statement or a similar document under the Uniform
Commercial Code or other similar statute or regulation of the relevant states or
jurisdictions;




     (iii) immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or any Restricted
Subsidiary as a result of such transaction as having been Incurred by the Successor Company
or such Restricted Subsidiary at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing;



89









 






     (iv) immediately after giving pro forma effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning of the
applicable four-quarter period:




     (A) the Successor Company would be able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 3.3(a); or




     (B) the Consolidated Coverage Ratio for the Successor Company and its
Restricted Subsidiaries would be equal to or greater than such Consolidated Coverage
Ratio immediately prior to such transaction; and




     (v) the Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.




          (b) Notwithstanding Sections 4.1(a)(iii) and (iv), any Restricted
Subsidiary may consolidate with, merge with or into or transfer all or part of its properties
and assets to the Issuer or a Guarantor so long as no Capital Stock of the Restricted
Subsidiary is distributed to any Person other than the Issuer or a Guarantor.




          (c) The Company shall be released from its obligations under this Indenture and the
Collateral Documents (as applicable), and the Successor Company shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture
and the Collateral Documents (as applicable), but, in the case of a lease of all or
substantially all its assets, the predecessor Company shall not be released from its
obligations under its Note Guarantee.




          (d) Solely for the purpose of computing amounts under Sections 3.4(a)(3)(A),
(a)(3)(B), (a)(3)(C) and (a)(3)(D), the Successor Company shall only
be deemed to have succeeded and be substituted for the Company with respect to periods
subsequent to the effective time of such merger, consolidation, combination or transfer of
assets.




          (e) For purposes of this Section 4.1, the sale, lease, conveyance, assignment,
transfer, or other disposition of all or substantially all of the properties and assets of
one or more Subsidiaries of the Company, which properties and assets, if held by the Company
instead of such Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.



          SECTION 4.2. When Issuer May Merge or Otherwise Dispose of Assets. (a) The Issuer
shall not consolidate with or merge with or into (whether or not the Issuer is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially
all of its properties and assets, in one or more related transactions, to any Person unless:





     (i) if other than the Issuer, the resulting, surviving or transferee Person (the
“Successor Issuer”) shall be a corporation, limited liability company or partnership



90









 







organized and existing under the laws of the United States of America, any State of the
United States of America, the District of Columbia or any other territory thereof; provided
that there shall be an obligor or a co-obligor that is a corporation;




     (ii) the Successor Issuer (if other than the Issuer) assumes pursuant to a supplemental
indenture or other documentation instruments, executed and delivered to the Trustee, in
forms reasonably satisfactory to the Trustee, all of the obligations of the Issuer under the
Notes, this Indenture, the GM Intercreditor Agreement and the Collateral Documents (as
applicable) and shall cause such amendments, supplements or other instruments to be
executed, filed and recorded in such jurisdictions as may be required by applicable law to
preserve and protect the Lien on the Collateral owned by or transferred to the Successor
Issuer, together with such financing statements or comparable documents as may be required
to perfect any security interests in such Collateral which may be perfected by the filing of
a financing statement or a similar document under the Uniform Commercial Code or other
similar statute or regulation of the relevant states or jurisdictions;




     (iii) immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Issuer or any Restricted
Subsidiary as a result of such transaction as having been Incurred by the Successor Issuer
or such Restricted Subsidiary at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing;




     (iv) immediately after giving pro forma effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning of the
applicable four-quarter period:




     (A) the Successor Issuer would be able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 3.3(a); or




     (B) the Consolidated Coverage Ratio for the Successor Company and its
Restricted Subsidiaries would be equal to or greater than such Consolidated Coverage
Ratio immediately prior to such transaction;




     (v) each Guarantor (unless it is the other party to the transactions above, in which
case clause (i) shall apply) shall have by supplemental indenture confirmed that its Note
Guarantee shall apply to such Person’s obligations in respect of this Indenture and the
Notes and its obligations under the Collateral Documents shall continue to be in effect and
shall cause such amendments, supplements or other instruments to be executed, filed, and
recorded in such jurisdictions as may be required by applicable law to preserve and protect
the Lien on the Collateral owned by such Guarantor, together with such financing statements
or comparable documents as may be required to perfect any security interests in such
Collateral which may be perfected by the filing of a financing statement or a similar
document under the Uniform Commercial Code or other similar statute or regulation of the
relevant states or jurisdictions; and



91









 






     (vi) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Section 4.2 and, if any supplement
to any Collateral Document is required in connection with such transaction, that such
supplement shall comply with the applicable provisions of this Indenture.




          (b) Notwithstanding Sections 4.2(a)(iii) and (iv):




     (i) any Restricted Subsidiary may consolidate with, merge with or into or transfer all
or part of its properties and assets to the Issuer or a Guarantor so long as no Capital
Stock of the Restricted Subsidiary is distributed to any Person other than the Issuer or a
Guarantor, and




     (ii) the Issuer may merge with an Affiliate of the Issuer solely for the purpose of
reincorporating the Issuer in another jurisdiction to realize tax or other benefits, so long
as the amount of Indebtedness of the Company and its Restricted Subsidiaries is not
increased thereby; provided that, in the case of a Restricted Subsidiary that merges into
the Issuer, the Issuer shall not be required to comply with the preceding clause (vi).




          (c) The Issuer shall be released from its obligations under this Indenture and the
Collateral Documents (as applicable), and the Successor Issuer shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under this Indenture
and the Collateral Documents (as applicable), but, in the case of a lease of all or
substantially all its assets, the predecessor Issuer shall not be released from the
obligation to pay the principal of and interest on the Notes.



          SECTION 4.3. When a Subsidiary Guarantor May Merge or Otherwise Dispose of Assets.
(a) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or
into (whether or not the Subsidiary Guarantor is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its properties and
assets, in one or more related transactions, to any Person (other than to the Issuer or another
Guarantor) unless, if such entity remains a Subsidiary Guarantor, (A) the resulting, surviving or
transferee Person (the “Successor Guarantor”) shall be a corporation, partnership, trust or
limited liability company organized and existing under the laws of the United States of America,
any State of the United States of America, the District of Columbia or any other territory thereof;
(B) the Successor Guarantor, if other than such Subsidiary Guarantor, expressly assumes in writing
by supplemental indenture (and other applicable documents), executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of such Subsidiary Guarantor under the
Note Guarantee, this Indenture and the Collateral Documents (as applicable) and shall cause such
amendments, supplements or other instruments to be executed, filed, and recorded in such
jurisdictions as may be required by applicable law to preserve and protect the Lien on the
Collateral owned by or transferred to the Successor Guarantor, together with such financing
statements or comparable documents as may be required to perfect any security interests in such
Collateral which may be perfected by the filing of a financing statement or a similar document
under the Uniform Commercial Code or other similar statute or regulation of the relevant states or
jurisdictions; (C) immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Guarantor or any Restricted




92









 




Subsidiary as a result of such transaction as having been Incurred by the Successor Guarantor
or such Restricted Subsidiary at the time of such transaction), no Default or Event of Default
shall have occurred and be continuing; and (D) the Company shall have delivered to the Trustee an
Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture (if any) comply with this Indenture.





          (b) A Subsidiary Guarantor shall be released from its obligations under this Indenture
and the Collateral Documents (as applicable), and the Successor Guarantor shall succeed to,
and be substituted for, and may exercise every right and power of, a Subsidiary Guarantor
under this Indenture and the Collateral Documents (as applicable), but, in the case of a
lease of all or substantially all its assets, a Subsidiary Guarantor shall not be released
from its obligations under its Subsidiary Guarantee.




          (c) Notwithstanding the foregoing, any Subsidiary Guarantor may merge with or into or
transfer all or part of its properties and assets to another Guarantor or the Issuer or merge
with a Restricted Subsidiary solely for the purpose of reincorporating the Subsidiary
Guarantor in a State of the United States or the District of Columbia, as long as the amount
of Indebtedness of such Subsidiary Guarantor and its Restricted Subsidiaries is not increased
thereby.



ARTICLE V




Redemption of Notes




     SECTION 5.1. Optional Redemption. (a) On and after the First Call Date, the Issuer
shall be entitled at its option to redeem all or a portion of the Notes at the redemption prices
(expressed in percentages of principal amount on the Redemption Date), plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the
12-month period commencing on January 15 of the years set forth below:



	 	 	 	 	 
	 	 	Redemption	 
	Period	 	price	 
	2014
	 	 	104.625	%
	2015
	 	 	102.313	%
	2016 and thereafter
	 	 	100.000	%







          (b) The Issuer may on any one or more occasions prior to January 15, 2013, redeem up to
35% of the original principal amount of the Notes (calculated after giving effect to any
issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a
redemption price of 109.250% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the applicable Redemption Date (subject to the right of Holders of Notes
on the relevant Record Date to receive interest due on the relevant Interest Payment Date);
provided that:



93









 






     (i) at least 65% of the original principal amount of the Notes (calculated after giving
effect to any issuance of Additional Notes) remains outstanding after each such redemption;
and




     (ii) the redemption occurs within 90 days after the closing of such Equity Offering.



          Notice of any redemption pursuant to this Section 5.1(b) may be given prior to the
completion of such Equity Offering, and any such redemption or notice may, at the Issuer’s
discretion, be subject to one or more conditions precedent, including, but not limited to,
completion of the related Equity Offering.





          (c) At any time prior to the First Call Date, the Issuer may redeem the Notes, in whole
or in part, at a redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium, plus accrued and unpaid interest, if any, to the Redemption Date (subject
to the right of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).




          (d) At any time prior to the First Call Date, not more than once in any twelve-month
period, the Issuer may redeem up to $42.5 million in principal amount of Notes at a
redemption price equal to 103% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment Date).



          SECTION 5.2. Election to Redeem; Notice to Trustee of Optional Redemptions. If the
Issuer elects to redeem Notes pursuant to Section 5.1, the Issuer shall furnish to the
Trustee, at least 5 Business Days before notice of redemption is required to be mailed or caused to
be mailed to Holders pursuant to Section 5.4 but not more than 60 days before a Redemption
Date, an Officer’s Certificate setting forth (a) the paragraph or subparagraph of such Note and/or
Section of this Indenture pursuant to which the redemption shall occur, (b) the Redemption Date,
(c) the principal amount of the Notes to be redeemed and (d) the redemption price. The Issuer
shall deliver to the Trustee such documentation and records as shall enable the Trustee to select
the Notes to be redeemed pursuant to Section 5.3.




          SECTION 5.3. Selection by Trustee of Notes To Be Redeemed. In the case of any partial
redemption, selection of the Notes for redemption shall be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed, then on as nearly a pro rata basis as possible or by lot
(subject to such rounding as the Trustee may determine so that Notes are redeemed in whole
increments of $1,000 and no Note of $2,000 in principal amount or less shall be redeemed in part).
If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in principal amount
equal to the unredeemed portion thereof shall be issued in the name of the Holder thereof upon
cancellation of the original Note in accordance with Section 5.7.




94









 








          The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal amount thereof to be
redeemed.




          For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed
only in part, to the portion of the principal amount of such Note which has been or is to be
redeemed.




          SECTION 5.4. Notice of Redemption. The Issuer shall 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 not less than 30 nor more than 60 days prior to a date fixed for redemption (a
“Redemption Date”), to each Holder of Notes to be redeemed. The Issuer may request that
the Trustee give notice of redemption in the Issuer’s name and at the Issuer’s expense; provided,
however, that the Issuer shall deliver to the Trustee, at least 5 Business Days before the notice
of redemption is required to be mailed or caused to be mailed to Holders (unless a shorter notice
shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such
notice at the Issuer’s expense and setting forth the information to be stated in such notice as
provided in the following items; provided, further, that redemption notices may be mailed more than
60 days prior to a Redemption Date if the notice is issued in connection with Article VIII.




          All notices of redemption shall state:





     (a) the Redemption Date,




     (b) the redemption price and the amount of accrued interest to the Redemption Date
payable as provided in Section 5.6, if any,




     (c) if less than all outstanding Notes are to be redeemed, the identification of the
particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption,




     (d) in case any Note is to be redeemed in part only, the notice which relates to such
Note shall state that on and after the Redemption Date, upon surrender of such Note, the
Holder shall receive, without charge, a new Note or Notes of authorized denominations for
the principal amount thereof remaining unredeemed,




     (e) that on the Redemption Date the redemption price (and accrued interest, if any, to
the Redemption Date payable as provided in Section 5.6) shall become due and payable
upon each such Note, or the portion thereof, to be redeemed, and, unless the Issuer defaults
in making the redemption payment, that interest on Notes called for redemption (or the
portion thereof) shall cease to accrue on and after said date,




     (f) the place or places where such Notes are to be surrendered for payment of the
redemption price and accrued interest, if any,



95









 






     (g) the name and address of the Paying Agent,




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




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




     (j) the Section of this Indenture pursuant to which the Notes are to be redeemed.



          SECTION 5.5. Deposit of Redemption Price. Prior to 10:00 a.m., New York City time, on
any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the
Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 2.4) an amount of money sufficient to pay the redemption price of, and accrued
interest on, all the Notes which are to be redeemed on that date.




          SECTION 5.6. Notes Payable on Redemption Date. Notice of redemption having been given
as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at
the redemption price therein specified (together with accrued interest, if any, to the Redemption
Date) (except as provided for in the last paragraph of Section 5.1(b)), and from and after
such date (unless the Issuer shall default in the payment of the redemption price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such Note for redemption
in accordance with said notice, such Note shall be paid by the Issuer at the redemption price,
together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).




          If any Note called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Notes.




          If a Redemption Date is on or after an interest Record Date and on or before the related
Interest Payment Date, the accrued and unpaid interest, if any, shall be paid to the Person in
whose name the Note is registered at the close of business on such Record Date, and no additional
interest shall be payable to Holders whose Notes shall be subject to redemption by the Issuer.




          SECTION 5.7. Notes Redeemed in Part. Any Note which is to be redeemed only in part
(pursuant to the provisions of this Article) shall be surrendered at the office or agency of the
Issuer maintained for such purpose pursuant to Section 2.3 (with, if the Issuer so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing),
and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Note at the expense of the Issuer, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Note so surrendered; provided that each such new
Note shall be in a principal amount of $2,000 and integral multiples of $1,000 in



96









 






excess thereof. It is understood that, notwithstanding anything in this Indenture to the
contrary, only an Issuer Order and not an Opinion of Counsel or Officer’s Certificate is required
for the Trustee to authenticate such new Note.




ARTICLE VI




Defaults and Remedies




          SECTION 6.1. Events of Default. (a) Each of the following is an event of default (an
“Event of Default”):





     (i) default in any payment of interest on any Note when the same becomes due, and such
default continues for a period of 30 days;




     (ii) default in the payment of the principal of or premium, if any, on any Note when
the same becomes due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration of acceleration or otherwise;




     (iii) the Issuer or any Guarantor fails to comply with its obligations under
Article IV or the Issuer fails to comply with Section 3.9 or 3.10;




     (iv) the Company, the Issuer or any Restricted Subsidiary fails to comply for 30 days
after notice as provided below with any of its obligations under Sections 3.2,
3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.11,
3.12, 3.13, 3.16, 3.17 and 3.18 and
Article IV (in each case, other than matters that would constitute an Event of
Default under Section 6.1(a)(iii));




     (v) the Company, the Issuer or any Restricted Subsidiary fails to comply for 60 days
after notice as provided below with its other agreements (except as provided in clauses
(a)(i) through (a)(iv) of this Section 6.1) contained in this Indenture or under the
Notes and the Collateral Documents;




     (vi) the Company, the Issuer or any Restricted Subsidiary defaults under any mortgage,
indenture or instrument under which there is issued or by which there is secured or
evidenced any Indebtedness for money borrowed by the Issuer, the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Issuer, the Company or
any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or any of
its Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or is
created after the Issue Date, which default:




     (A) is caused by a failure to pay principal on such Indebtedness at its stated
maturity or due date (after giving effect to any applicable grace periods)
(“payment default”); or




     (B) results in the acceleration by the holders of such Indebtedness prior to
its stated final, 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



97









 







payment default or the maturity of which has been so accelerated (after giving
effect to any applicable grace periods), aggregates $50.0 million or more;




     (vii) the Company, the Issuer or a Significant Subsidiary or a group of Restricted
Subsidiaries that, taken together (as of the latest audited consolidated financial
statements for the Company and its Restricted Subsidiaries), would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:




     (A) commences a voluntary case or proceeding with respect to itself;




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




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




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




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




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




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




     (B) appoints a Custodian of the Company, the Issuer or any Significant
Subsidiary or a group of Restricted Subsidiaries that, taken together (as of the
latest audited financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary, for any substantial part
of its property; or




     (C) orders the winding up or liquidation of the Company, the Issuer or any
Significant Subsidiary or a group of Restricted Subsidiaries that, taken together
(as of the latest audited financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary;




or any similar relief is granted under any foreign laws and the order, decree or relief
remains unstayed and in effect for 60 days;




     (ix) failure by the Company, the Issuer or any Restricted Subsidiary to pay final and
non-appealable judgments aggregating in excess of $35.0 million (net of any amounts that are
covered by insurance issued by a reputable and creditworthy insurance company), which
judgments are not paid, discharged or stayed for a period of 30 days after such judgment
becomes final;



98









 






     (x) any Note Guarantee of any Significant Subsidiary or a group of Restricted
Subsidiaries that, taken together (as of the latest audited consolidated financial
statements for the Company), would constitute a Significant Subsidiary shall for any reason
cease to be, or shall for any reason be asserted in writing by any Guarantor or the Issuer
not to be, in full force and effect and enforceable in accordance with its terms, except to
the extent permitted by this Indenture and any such Note Guarantee; and




     (xi) unless all of the Collateral has been released from Liens in accordance with the
provisions of the Collateral Documents, (x) default by the Issuer or any Guarantor in the
performance of the Collateral Documents which adversely affects the enforceability,
validity, perfection or priority of the Liens securing the Notes on a material portion of
the Collateral, (y) the repudiation or disaffirmation by the Issuer or any Guarantor of its
material obligations under the Collateral Documents or (z) the determination in a judicial
proceeding that the Collateral Documents are unenforceable or invalid against the Issuer or
any Guarantor party thereto for any reason with respect to a material portion of the
Collateral and, in the case of any event described in subclauses (x) through (z), such
default, repudiation, disaffirmation or determination is not rescinded, stayed, or waived by
the Persons having such authority pursuant to the Collateral Documents or otherwise cured
within 60 days.



          The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.




          Notwithstanding the foregoing, a default under clauses (iv), (v) or (xi) of this
Section 6.1(a) shall not constitute an Event of Default until the Trustee or the Holders of
25% in principal amount of the outstanding Notes notify the Issuer of the default and the Issuer
does not cure such default within the time specified in clause (iv), (v) or (xi) of this
Section 6.1(a) after receipt of such notice. Such written notice must specify the Default,
demand that it be remedied and state that such notice is a “Notice of Default.”




          SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default
specified in Section 6.1(a)(vii) or (viii) with respect to the Issuer) occurs and
is continuing, the Trustee by notice (in writing specifying the Event of Default and stating that
such notice is a Notice of Default) to the Issuer, or the Holders of at least 25% in principal
amount of the outstanding Notes by notice to the Issuer and the Trustee, may, and the Trustee at
the request of such Holders shall, declare the principal of, premium, if any, and accrued and
unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such
principal, premium and accrued and unpaid interest shall, subject to Section 6.4, be
immediately due and payable. In the event of a declaration of acceleration of the Notes because an
Event of Default set forth in Section 6.1(a)(vi) above has occurred and is continuing, such
declaration of acceleration of the Notes shall be automatically rescinded and annulled if the event
of default or payment default triggering such Event of Default pursuant to
Section 6.1(a)(vi) shall be remedied or cured by the Company, the Issuer or a Restricted
Subsidiary or waived by the holders of the relevant Indebtedness within 20 days after the
declaration of acceleration with respect thereto and if (1) the annulment of the acceleration of
the Notes would not conflict with any judgment or decree of



99









 






a court of competent jurisdiction and (2) all existing Events of Default, except nonpayment of
principal, premium or interest on the Notes that became due solely because of the acceleration of
the Notes, have been cured or waived. If an Event of Default specified in
Section 6.1(a)(vii) or (viii) with respect to the Issuer or the Company occurs and is
continuing, the principal of, premium, if any, and accrued and unpaid interest on all the Notes
shall become and be immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders.




          SECTION 6.3. 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 or interest on the
Notes or to enforce the performance of any provision of the Notes, this Indenture, the Note
Guarantees or the Collateral Documents.




          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 in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.




          SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in principal amount
of the outstanding (including without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes) Notes by notice to the Trustee may waive an
existing Default or Event of Default and its consequences (except a Default or Event of Default in
the payment of the principal of, premium or interest on a Note) and rescind any such acceleration
with respect to the Notes and its consequences if (1) rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default,
other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have
become due solely by such declaration of acceleration, have been cured or waived. When a Default
or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.




          SECTION 6.5. Control by Majority. Subject to the terms of the GM Intercreditor
Agreement and the Collateral Documents, the Holders of a majority in 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 the Collateral Agent or of exercising any trust or power
conferred on the Trustee or the Collateral Agent. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, the Notes, the Note Guarantees or the
Collateral Documents, or, subject to Sections 7.1 and 7.2, that the Trustee
determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any action under this
Indenture, the Trustee shall be entitled to indemnity, security or prefunding satisfactory to it in
its sole discretion against all losses and expenses caused by taking or not taking such action.




          SECTION 6.6. Limitation on Suits. Except to enforce the right to receive payment of
principal, premium, if any, or interest when due, no Holder may pursue any remedy with respect to
this Indenture or the Notes unless:




100









 









     (i) the Holder has previously given to the Trustee written notice stating that an Event
of Default is continuing;




     (ii) the Holders of at least 25% in outstanding principal amount of the Notes have made
a written request to the Trustee to pursue the remedy;




     (iii) such Holder or Holders have offered to the Trustee security or indemnity
reasonably satisfactory to it against any loss, liability or expense;




     (iv) the Trustee has not complied with the request within 60 days after receipt of the
request and the offer of security or indemnity; and




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



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




          Notwithstanding the foregoing, in no event may any Holder enforce any Lien of the Collateral
Agent pursuant to the Collateral Documents.




          SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of principal of, premium
(if any) or interest on the Notes held by such Holder, on or after the respective due dates
expressed in the Notes, 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 6.8. Collection Suit by Trustee. If an Event of Default specified in
Section 6.1(a)(i) or (ii) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer for the whole amount
then due and owing (together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.6.




          SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Issuer, the Company
and its Subsidiaries or their respective creditors or properties and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make 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 it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section
7.6.




          SECTION 6.10. Priorities. Subject to the terms of the Collateral Documents, the
Trustee shall pay out any money or property received by it, whether pursuant to the foreclosure



101









 






or other remedial provisions contained in the Collateral Documents or otherwise, in the
following order:




          First: to the Trustee for amounts due to it under Section 7.6 and to the Collateral
Agent for fees and expenses incurred under the Collateral Documents;




          Second: to Holders 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 Issuer or, to the extent the Trustee receives any amount for any Guarantor, to
such Guarantor.




          The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section. At least 15 days before such record date, the Issuer shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be paid.




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




ARTICLE VII




Trustee




          SECTION 7.1. Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and the
Collateral Documents, 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; provided
that if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to
exercise any of the rights or powers under this Indenture, the Notes, the Note Guarantees and the
Collateral Documents at the request or direction of any of the Holders unless such Holders have
offered the Trustee indemnity, security or prefunding satisfactory to the Trustee in its sole
discretion, as applicable, against loss, liability or expense.





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




     (i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and the Collateral Documents and no implied



102









 







covenants or obligations shall be read into this Indenture or any Collateral Document
against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture, the Notes, the Note Guarantees or the Collateral Documents, as applicable.
However, in the case of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the requirements of
this Indenture, the Notes, the Note Guarantees or the Collateral Documents, as the case may
be (but need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein). Delivery of any reports, information and documents to the Trustee,
including pursuant to Section 3.2, 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 pursuant to Article III (as to which
the Trustee is entitled to rely exclusively on an Officer’s Certificate).




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




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




     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer or Trust Officers unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.5.




          (d) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Issuer.




          (e) Money held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.




          (f) No provision of this Indenture, the Notes, the Note Guarantees or the Collateral
Documents shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or thereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.




          (g) Every provision of this Indenture and the Collateral Documents relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.



103









 






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




          (i) In the absence of bad faith, negligence or wilful misconduct on the part of the
Trustee, the Trustee shall not be responsible for the use or application of any money by any
Paying Agent other than the Trustee.



          SECTION 7.2. Rights of Trustee. (a) The Trustee may conclusively rely and shall be
protected in acting upon any resolution, certificate, statement, instrument, opinion, notice,
request, direction, consent, order, bond or any other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person or Persons. 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 Officer’s
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of
Counsel.




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




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




          (e) The Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel with respect to legal matters relating to this Indenture, the Notes, the Note
Guarantees or the Collateral Documents shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by it hereunder
or under the Notes, the Note Guarantees or the Collateral Documents in good faith and in
accordance with the advice or opinion of such counsel.




          (f) The Trustee shall not be bound to make any investigation into any statement,
warranty or representation, or the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent, order, bond or other
paper or document made or in connection with this Indenture or any other Collateral Document;
moreover, the Trustee shall not be bound to make any investigation into (i) the performance
or observance of any of the covenants, agreements or other terms or conditions set forth
herein or in any other Collateral Document, (ii) the creation, perfection or priority of any
Lien purported to be created by the Collateral Documents, (iii) the value or sufficiency of
any Collateral, (iv) the satisfaction of any condition set forth in any Collateral Document
or (v) the occurrence of any default, or the validity, enforceability, effectiveness or
genuineness of this Indenture, any other Collateral



104









 







Document or any other agreement, instrument or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney at the sole cost of the Issuer and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation.




          (g) The Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) during any period it is serving as Registrar and Paying Agent for the Notes, any
Event of Default occurring pursuant to Sections 6.1(a)(i) and 6.1(a)(ii), or
(ii) any Default or Event of Default of which a Trust Officer shall have (x) received written
notification at the Corporate Trust Office of the Trustee and such notice references the
Notes and this Indenture or (y) obtained “actual knowledge.” “Actual knowledge”
shall mean the actual fact or statement of knowing by a Trust Officer without independent
investigation with respect thereto.




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




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




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



          SECTION 7.3. 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 Issuer, the
Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Section 7.9. In addition, the Trustee shall be
permitted to engage in transactions with the Issuer; provided, however, that if the Trustee
acquires any conflicting interest the Trustee must (i) eliminate such conflict within 90 days of
acquiring such conflicting interest, (ii) apply to the SEC for permission to continue acting as
Trustee or (iii) resign.




          SECTION 7.4. Disclaimer. The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Notes, the Note Guarantees or
the Collateral Documents, it shall not be accountable for the Issuer’s use of the Notes or the
proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this
Indenture or in any document issued in connection with the sale of the Notes or in the Notes other
than the Trustee’s certificate of authentication or for the use or application of any funds
received by any Paying Agent other than the Trustee.




105









 








          SECTION 7.5. Notice of Defaults. If a Default occurs and is continuing and is known
to the Trustee, the Trustee shall mail to each Holder, with a copy to the Collateral Agent, notice
of the Default within 90 days after it occurs. Except in the case of a Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and
so long as a committee of Trust Officers of the Trustee in good faith determines that withholding
the notice is in the interests of Holders.




          SECTION 7.6. Compensation and Indemnity. The Issuer shall pay to the Trustee from
time to time such compensation for its services as the parties shall agree in writing from time to
time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection,
costs of preparing and reviewing reports, certificates and other documents, costs of preparation
and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Issuer
shall indemnify the Trustee or any predecessor Trustee in each of its capacities hereunder
(including Paying Agent, and Registrar), and each of their officers, directors, employees, counsel
and agents, against any and all loss, liability or expense (including, but not limited to,
reasonable attorneys’ fees and expenses) incurred by it in connection with the administration of
this trust and the performance of its duties hereunder and under the Notes, the Note Guarantees and
the Collateral Documents, including the costs and expenses of enforcing this Indenture (including
this Section 7.6), the Notes, the Note Guarantees and the Collateral Documents and of
defending itself against any claims (whether asserted by any Holder, the Issuer or otherwise). The
Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The
Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay
the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through its own willful misconduct
or negligence or bad faith.




          To secure the Issuer’s payment obligations in this Section, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest on particular Notes. The right of the
Trustee to receive payment of any amounts due under this Section 7.6 shall not be
subordinate to any other liability or indebtedness of the Issuer.




          The Issuer’s payment obligations pursuant to this Section and any lien arising hereunder shall
survive the discharge of this Indenture and the resignation or removal of the Trustee. When the
Trustee incurs expenses after the occurrence of a Default specified in Section 6.1(a)(vii)
or (viii) with respect to the Issuer, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.




          SECTION 7.7. Replacement of Trustee. The Trustee may resign at any time by so
notifying the Issuer. The Holders of a majority in principal amount of the Notes may remove



106









 






the Trustee by so notifying the Issuer and the Trustee in writing and may appoint a successor
Trustee. The Issuer shall remove the Trustee if:





     (i) the Trustee fails to comply with Section 7.9;




     (ii) the Trustee is adjudged bankrupt or insolvent;




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




     (iv) the Trustee otherwise becomes incapable of acting.



          If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in
principal amount of the Notes and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.6.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the Notes
may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a
successor Trustee.




          If the Trustee fails to comply with Section 7.9, unless the Trustee’s duty to resign
is stayed, any Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.




          Notwithstanding the replacement of the Trustee pursuant to this Section 7.7, the
Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring
Trustee.




          SECTION 7.8. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.




          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in the



107









 






name of the successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture provided that the certificate of
the Trustee shall have.




          SECTION 7.9. Eligibility; Disqualification. The Trustee shall have a combined capital
and surplus of at least $50 million as set forth in its most recent filed annual report of
condition.




          SECTION 7.10. Limitation on Duty of Trustee in Respect of Collateral. (a) Beyond the
exercise of reasonable care in the custody thereof, the Trustee shall not have any duty as to any
Collateral in its possession or control or in the possession or control of any agent or bailee or
any income thereon or as to preservation of rights against prior parties or any other rights
pertaining thereto and the Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public office at any time
or times or otherwise perfecting or maintaining the perfection of any security interest in the
Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment substantially equal to that
which they accord their own property and shall not be liable or responsible for any loss or
diminution in the value of any of the Collateral, by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by the Trustee in good faith.





          (b) The Trustee shall not have any duty to ascertain or inquire as to the performance or
observance of any of the terms of this Indenture, the Notes, the Note Guarantees or the
Collateral Documents by the Issuer, the Guarantors or any other Person.



ARTICLE VIII




Discharge of Indenture; Defeasance




          SECTION 8.1. Discharge of Liability on Notes; Defeasance. (a) When (i) (x) the
Issuer delivers to the Trustee all authenticated Notes (other than Notes replaced pursuant to
Section 2.9 and Notes for whose payment money has been deposited in trust and thereafter
repaid to the Issuer) for cancellation or (y) all Notes not theretofore delivered to the Trustee
for cancellation have become due and payable whether at maturity or upon redemption pursuant to
Article V hereof, or shall become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of a
notice of redemption pursuant to Article V and the Issuer or any Guarantor irrevocably
deposits or causes to be deposited with the Trustee as trust funds in trust solely for the benefit
of the Holders cash in U.S. dollars, U.S. Government Obligations or a combination thereof, in such
amounts as shall be sufficient without consideration of any reinvestment of interest to pay and
discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption; (ii) no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit (other than a Default resulting from
borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing)
and such deposit shall not result in a breach or violation of, or constitute a default under, any
material instrument (other than this Indenture) to which the Issuer is a party or by




108









 







which the Issuer is bound; (iii) the Issuer has paid or caused to be paid all sums payable to
the Trustee under this Indenture and the Notes; and (iv) the Issuer has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited money toward the payment of
such Notes at maturity or the Redemption Date, as the case may be, then this Indenture shall,
subject to Section 8.1(c), cease to be of further effect.





          (b) Subject to Sections 8.1(c) and 8.2, the Issuer at its option and at
any time may terminate (i) all the obligations of the Issuer and any Guarantor under the
Notes, this Indenture and the Collateral Documents (“legal defeasance option”) or
(ii) the obligations of the Issuer and any Guarantor under Sections 3.2, 3.3,
3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10,
3.11, 3.12, 3.13, 3.16, 3.17, 3.18,
3.19, 3.20, 3.21 and 4.2(a)(iv) and the Collateral Documents
and the Issuer and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant or provision,
whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or provision 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 with such covenants or
provisions shall no longer constitute a Default or an Event of Default under
Section 6.1(a)(iii) (only with respect to Section 4.2(a)(iv)),
6.1(a)(iv) (only with respect to such covenants), 6.1(a)(v) (only with
respect to such covenants), 6.1(a)(vi), 6.1(a)(vii) (only with respect to
Significant Subsidiaries or a group of Restricted Subsidiaries that, taken together (as of
the latest audited financial statements of the Company and its Restricted Subsidiaries),
would constitute a Significant Subsidiary), Section 6.1(a)(viii) (only with respect
to Significant Subsidiaries or a group of Restricted Subsidiaries that, taken together (as of
the latest audited financial statements of the Company and its Restricted Subsidiaries),
would constitute a Significant Subsidiary) and Section 6.1(a)(ix) (clause (ii) being
referred to as the “covenant defeasance option”), but except as specified above, the
remainder of this Indenture and the Notes shall be unaffected thereby. The Issuer may
exercise its legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.



          If the Issuer exercises its legal defeasance option, payment of the Notes may not be
accelerated because of an Event of Default. If the Issuer exercises its covenant defeasance
option, payment of the Notes may not be accelerated because of an Event of Default specified in
Section 6.1(a)(iii) (only with respect to Section 4.2(a)(iv)), 6.1(a)(iv)
(only with respect to the covenants subject to such covenant defeasance), 6.1(a)(v) (only
with respect to the covenants subject to such covenant defeasance), 6.1(a)(vi),
6.1(a)(vii) (only with respect to Significant Subsidiaries or a group of Restricted
Subsidiaries that, taken together (as of the latest audited financial statements of the Company and
its Restricted Subsidiaries), would constitute a Significant Subsidiary), 6.1(a)(viii)
(only with respect to Significant Subsidiaries or a group of Restricted Subsidiaries that, taken
together (as of the latest audited financial statements of the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary), 6.1(a)(ix), 6.1(a)(x) or
6.1(a)(xi) or because of the failure of the Issuer to comply with
Section 4.2(a)(iv).




          Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the
Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates.




109









 









          (c) Notwithstanding the provisions of Sections 8.1(a) and (b), the
Issuer’s obligations in Sections 2.2, 2.3, 2.4, 2.5,
2.6, 2.9, 2.10, 2.11, 2.12, 3.1, 6.7,
6.8, 7.1, 7.2, 7.6, 7.7, 8.1(b) (with respect
to legal defeasance), 8.3, 8.4, 8.5 and 8.6 shall survive
until the Notes have been paid in full. Thereafter, the Issuer’s obligations in
Sections 6.7, 7.6, 8.4 and 8.5 shall survive.



          SECTION 8.2. Conditions to Defeasance. The Issuer may exercise its legal defeasance
option or its covenant defeasance option only if:





     (i) the Issuer shall irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, U.S. Government Obligations or a combination of cash in
U.S. dollars and U.S. Government Obligations, in such amounts as shall be sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to pay the
principal of, or interest and premium, if any, on the outstanding Notes issued hereunder on
the Stated Maturity or on the applicable Redemption Date, as the case may be, and the Issuer
must specify whether the Notes are being defeased to maturity or to a particular Redemption
Date;




     (ii) in the case of legal defeasance, the Issuer has delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, (a) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the Issue Date, 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 shall not
recognize income, gain or loss for federal income tax purposes as a result of such legal
defeasance and shall 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;




     (iii) in the case of covenant defeasance, the Issuer has delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the respective outstanding Notes shall
not recognize income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and shall 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;




     (iv) such legal defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Issuer, the Company or any of its Restricted Subsidiaries
is a party or by which the Issuer, the Company or any of its Restricted Subsidiaries is
bound;




     (v) the Issuer shall deliver to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Issuer with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuer or others; and



110









 






     (vi) the Issuer shall deliver to the Trustee an Officer’s Certificate and an Opinion of
Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions),
each stating that all conditions precedent relating to the legal defeasance or the covenant
defeasance have been complied with.



          SECTION 8.3. Application of Trust Money. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall
apply the deposited money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of and interest on the Notes.




          SECTION 8.4. Repayment to Issuer. Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon Issuer Order any money or
U.S. Government Obligations held by it as provided in this Article VIII which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect legal defeasance or covenant defeasance, as applicable;
provided that the Trustee shall not be required to liquidate any U.S. Government Obligations in
order to comply with the provisions of this paragraph.




          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Issuer upon written request any money held by them for the payment of principal of or
interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to
the money must look to the Issuer for payment as general creditors.




          SECTION 8.5. Indemnity for U.S. Government Obligations. The Issuer shall pay and
shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on such U.S.
Government Obligations.




          SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Issuer and
each Guarantor under this Indenture, the Notes, the Note Guarantees and the Collateral Documents
shall be revived and reinstated as though no deposit had occurred pursuant to this
Article VIII until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article VIII; provided,
however, that, if the Issuer or the Guarantors have made any payment of interest on or principal of
any Notes because of the reinstatement of its obligations, the Issuer or the Guarantors, as the
case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying Agent.




111









 








ARTICLE IX




Amendments




          SECTION 9.1. Without Consent of Holders. This Indenture, the Notes, the Note
Guarantees, the GM Intercreditor Agreement and the Collateral Documents may be amended or
supplemented without notice to or consent of any Holder:





     (i) to cure any ambiguity, omission, defect or inconsistency;




     (ii) to comply with (a) Article IV in respect of the assumption by a Successor
Issuer of an obligation of the Issuer under this Indenture, the Notes and the Collateral
Documents and (b) Article IV and Article X in respect of the assumption by a
Person of the obligations of a Guarantor under its Note Guarantee, this Indenture, the Notes
and the Collateral Documents;




     (iii) to provide for uncertificated Notes in addition to or in place of certificated
Notes; provided that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code;




     (iv) to issue Additional Notes in accordance with this Indenture, to add Guarantees
with respect to the Notes or to release a Guarantor from its obligations under its Note
Guarantee or this Indenture in accordance with the applicable provisions of this Indenture;




     (v) add additional property or assets as Collateral to secure the Notes and the Note
Guarantees;




     (vi) to release Liens in favor of the Collateral Agent in the Collateral as provided in
Section 11.2 or otherwise in accordance with this Indenture and the Collateral
Documents;




     (vii) to add to the covenants of the Issuer or any Guarantor for the benefit of the
Holders or to surrender any right or power herein conferred upon the Issuer or any
Guarantor;




     (viii) to make any change that does not adversely affect the rights of any Holder in
any material respect;




     (ix) comply with any requirement of the SEC in connection with the qualification of
this Indenture under the Trust Indenture Act of 1939, as amended;




     (x) provide for the appointment of a successor trustee; provided that the successor
trustee is otherwise qualified and eligible to act as such under the terms of this
Indenture; or




     (xi) conform the text of this Indenture, the Notes, the Note Guarantees or the
Collateral Documents to any provision of the “Description of notes” section of the



112









 







Offering Memorandum, to the extent that such provision in the “Description of notes” is
intended to be a verbatim recitation of a provision of this Indenture, the Notes, the Note
Guarantees or the Collateral Documents.



          After an amendment or supplement under this Section, the GM Intercreditor Agreement or the
Collateral Documents becomes effective, the Issuer shall mail to Holders a notice briefly
describing such amendment or supplement. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment or supplement under this
Section. A consent to any amendment, supplement or waiver under this Indenture by any Holder given
in connection with a tender of such Holder’s Note shall not be rendered invalid by such tender.




          SECTION 9.2. With Consent of Holders. This Indenture, the Notes, the Note Guarantees,
the GM Intercreditor Agreement and the Collateral Documents may be amended or supplemented with the
consent of the Holders of a majority in principal amount of the Notes then outstanding (including
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). Any past default or compliance with the provisions of this Indenture, the
Notes, the Note Guarantees or the Collateral Documents may be waived with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). However, without the consent of each Holder of an outstanding Note affected, an
amendment, supplement or waiver may not:





     (i) reduce the principal amount of Notes whose Holders must consent to an amendment;




     (ii) reduce the rate of or extend the time for payment of interest on any Note;




     (iii) reduce the principal of or extend the Stated Maturity of any Note;




     (iv) waive a Default or Event of Default in the payment of principal of, or interest or
premium, if any, on the Notes issued hereunder (except a rescission of acceleration of the
Notes issued hereunder by the Holders of at least a majority in aggregate principal amount
of the Notes issued hereunder with respect to a nonpayment default and a waiver of the
payment default that resulted from such acceleration);




     (v) reduce the premium payable upon the redemption or repurchase of any Note or change
the time at which any Note may or shall be redeemed or repurchased in accordance with
Section 3.9 or 3.10, or Article V, whether through an amendment or
waiver of provisions in the covenants or otherwise;




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




     (vii) impair the right of any Holder to receive payment of principal, premium, if any,
and interest on such Holder’s Notes on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holder’s Notes;




     (viii) make any change in the amendment provisions in this Section 9.2;



113









 






     (ix) modify the Note Guarantees of the Company or any Significant Subsidiary or group
of Subsidiary Guarantors that, taken together (as of the latest audited consolidated
financial statements for the Company and its Restricted Subsidiaries), would constitute a
Significant Subsidiary in any manner, taken as a whole, materially adverse to the Holders;
or




     (x) release the Company or any Subsidiary Guarantor that is a Significant Subsidiary or
group of Subsidiary Guarantors that, taken together (as of the latest audited consolidated
financial statements for the Company and its Restricted Subsidiaries), would constitute a
Significant Subsidiary from any of its obligations under its Note Guarantee or this
Indenture, except in compliance with the terms thereof.



          In addition, without the consent of the Holders of at least two thirds in principal amount of
Notes then outstanding, no amendment, supplement or waiver may release any Collateral from the
Liens of the Collateral Documents other than in accordance with this Indenture, the GM
Intercreditor Agreement and the Collateral Documents.




          If Holders of at least two thirds in principal amount of Notes then outstanding consent to any
release of any Collateral from the Liens of the Collateral Documents (other than a release in
accordance with this Indenture, the GM Intercreditor Agreement and the Collateral Documents), the
Collateral Agent shall be entitled to vote the total principal amount of Notes then outstanding as
a block in respect of any vote required for such release under the Collateral Documents.




          It shall not be necessary for the consent of the Holders under this Section to approve the
particular form of any proposed amendment or supplement, but it shall be sufficient if such consent
approves the substance thereof. A consent to any amendment, supplement or waiver under this
Indenture by any Holder given in connection with a tender of such Holder’s Note shall not be
rendered invalid by such tender.




          After an amendment or supplement under this Indenture, the GM Intercreditor Agreement or the
Collateral Documents becomes effective, the Issuer shall mail to the Holders a notice briefly
describing such amendment or supplement. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment or supplement under this
Section.




          SECTION 9.3. Effect of Consents and Waivers. A consent to an amendment, supplement or
a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or
portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent or waiver is not made on the Note. After an amendment or waiver becomes effective,
it shall bind every Holder unless it makes a change described in clauses (i) through (x) of
Section 9.2, in which case the amendment, supplement or waiver or other action shall bind
each Holder who has consented to it and every subsequent Holder that evidences the same debt as the
consenting Holder’s Notes. An amendment or waiver made pursuant to Section 9.2 shall
become effective upon receipt by the Trustee of the requisite number of written consents.




114









 








          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to take any such action, whether or not such Persons continue to be Holders after such
record date.




          SECTION 9.4. Notation on or Exchange of Notes. If an amendment changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or to issue a new Note shall not affect the validity of such
amendment.




          SECTION 9.5. Trustee To Sign Amendments. The Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or
waiver does not, in the sole determination of the Trustee, adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In
signing any amendment, supplement or waiver pursuant to this Article IX, the Trustee shall
be entitled to receive, and (subject to Sections 7.1 and 7.2) shall be fully
protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture and that such
amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any
Guarantors, enforceable against them in accordance with its terms, subject to customary exceptions,
and complies with the provisions hereof (including Section 9.3). Notwithstanding the
foregoing, no Opinion of Counsel shall be required for the Trustee to execute any amendment or
supplement adding a new Guarantor under this Indenture.




ARTICLE X




Note Guarantee




          SECTION 10.1. Note Guarantee. Subject to the provisions of this Article X,
each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes, to
the extent lawful, and the Trustee the full and punctual payment when due, whether at maturity, by
acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the
Notes and all other obligations of the Issuer under this Indenture and the Notes (including,
without limitation, interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any
Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding and the obligations under Section 7.6) and the Collateral Documents (all the
foregoing being hereinafter collectively called the “Guarantor Obligations”). Each
Guarantor agrees (to the extent lawful) that the Guarantor Obligations may be extended or renewed,
in




115









 







whole or in part, without notice or further assent from it, and that it shall remain bound
under this Article X notwithstanding any extension or renewal of any Guarantor Obligation.




          Each Guarantor waives (to the extent lawful) presentation to, demand of, payment from and
protest to the Issuer of any of the Guarantor Obligations and also waives (to the extent lawful)
notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any
default under the Notes or the Guarantor Obligations.




          Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and waives any right to require that any
resort be had by any Holder to any security held for payment of the Guarantor Obligations.




          Except as set forth in Section 4.3, Section 10.2 and Article VIII, the
obligations of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than payment of the Guarantor Obligations in full),
including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the
extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor
Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of
each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise
affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Issuer or any other person under this Indenture, the Notes, the Collateral
Documents or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture,
the Notes, the Collateral Documents or any other agreement; (d) the release of any security held by
any Holder or the Collateral Agent for the Guarantor Obligations or any of them; (e) the failure of
any Holder to exercise any right or remedy against any other Guarantor; (f) any default, failure or
delay, willful or otherwise, in the performance of the Guarantor Obligations; or (g) any other act
or thing or omission or delay to do any other act or thing which may or might in any manner or to
any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such
Guarantor as a matter of law or equity.




          Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect
until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note
Guarantee in compliance with Section 4.3, Section 10.2 and Article VIII.
Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of principal of,
premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be
restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.




          In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay
any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,



116









 






to the Trustee or the Trustee on behalf of the Holders an amount equal to the unpaid amount of
such Guarantor Obligations then due and owing.




          Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Note Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of
acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note
Guarantee.




          Each Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section.




          Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to
reflect any Guarantee or any release, termination or discharge thereof and any such notation shall
not be a condition to the validity of any Guarantee.




          SECTION 10.2. Limitation on Liability; Termination, Release and Discharge. (a) Any
term or provision of this Indenture to the contrary notwithstanding, the obligations of each
Subsidiary Guarantor hereunder shall be limited to the maximum amount as shall, after giving effect
to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor under its Note Guarantee or pursuant
to its contribution obligations under this Indenture, result in the obligations of such Subsidiary
Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law and not otherwise being void or voidable under any similar laws
affecting the rights of creditors generally.





     (b) (i) A Note Guarantee by a Subsidiary Guarantor shall be automatically and
unconditionally released and discharged, and each Subsidiary Guarantor and its obligations
under the Note Guarantee and this Indenture shall be released and discharged, upon any sale,
exchange or transfer (by merger or otherwise) of the Capital Stock of such Subsidiary
Guarantor (including any sale, exchange or transfer, after which the applicable Subsidiary
Guarantor is no longer a Restricted Subsidiary, or the sale or disposition of all the assets
of such Subsidiary Guarantor, which sale, exchange, transfer or disposition is made in
compliance with this Indenture, including Section 3.7 and Article IV);




     (ii) each Guarantor shall be deemed released from all its obligations under this
Indenture and its Note Guarantee, and such Note Guarantee shall terminate, upon the legal
defeasance or covenant defeasance of the Notes or upon satisfaction and discharge of this
Indenture, in each case pursuant to the provisions of Article VIII hereof;




     (iii) each Guarantor shall be deemed released from all its obligations under this
Indenture and its Note Guarantee, and such Note Guarantee shall terminate, upon the



117









 







election of the Issuer following the Suspension Date pursuant to and in accordance with
Section 3.13; and




     (iv) each Subsidiary Guarantor shall be released from its obligations under this
Indenture and its Note Guarantee if the Company designates such Subsidiary Guarantor as an
Unrestricted Subsidiary and such designation complies with the other applicable provisions
of this Indenture.




          (c) The release of a Guarantor from its Note Guarantee and its obligations under this
Indenture in accordance with the provisions of this Section 10.2 shall not preclude
the future applications of Section 3.11 to such Person.



          SECTION 10.3. Right of Contribution. Each Guarantor hereby agrees that to the extent
that any Guarantor shall have paid more than its proportionate share of any payment made on the
obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive
contribution from and against the Issuer or any other Guarantor who has not paid its proportionate
share of such payment. The provisions of this Section 10.3 shall in no respect limit the
obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor
shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor
hereunder.




          SECTION 10.4. No Subrogation. Notwithstanding any payment or payments made by each
Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the
Trustee or any Holder against the Issuer or any other Guarantor or any collateral security or
guarantee or right of offset held by the Trustee or any Holder for the payment of the Guarantor
Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement
from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Trustee and the Holders by the Issuer on account of the Guarantor
Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Guarantor Obligations shall not have been paid in
full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor,
be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such
Guarantor to the Trustee, if required), to be applied against the Guarantor Obligations.




ARTICLE XI




Collateral and Security




          SECTION 11.1. The Collateral. (a) The due and punctual payment of the principal of,
premium, if any, and interest on the Notes and the Note Guarantees thereof when and as the same
shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration,
repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the
extent lawful), if any, on the Notes and the Note Guarantees thereof and performance of all other
obligations under this Indenture, including, without limitation, the obligations of the Issuer set
forth in Section 7.6 and Section 8.6 herein, and the Notes and the




118









 







Note Guarantees thereof and the Collateral Documents, shall be secured by Liens as provided in
the Collateral Documents which the Issuer and the Guarantors, as the case may be, have entered into
simultaneously with the execution of this Indenture and shall be secured by all Collateral
Documents hereafter delivered as required or permitted by this Indenture and the Collateral
Documents.





          (b) The Issuer and the Guarantors hereby agree that the Collateral Agent shall hold the
Collateral in trust for the benefit of all of the Holders and the Trustee and the holders of
the other First Lien Obligations, in each case pursuant to the terms of the Collateral
Documents and the Collateral Agent is hereby authorized to execute and deliver the Collateral
Documents and the acknowledgment and consent pursuant to Section 12(c) of the GM Access
Agreement.




          (c) Each Holder, by its acceptance of any Notes and the Note Guarantees thereof,
consents and agrees to the terms of the Collateral Documents and the GM Intercreditor
Agreement (including, without limitation, the provisions providing for foreclosure), as the
same may be in effect or as may be amended from time to time in accordance with their terms,
and authorizes and directs each of the Trustee and the Collateral Agent to perform its
obligations and exercise its rights under the Collateral Documents in accordance therewith.




          (d) The Trustee and each Holder, by accepting the Notes and the Note Guarantees thereof,
acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now
or hereafter constituted shall be held for the benefit of all the Holders and the Trustee and
the holders of the other First Lien Obligations, and that the Lien of this Indenture and the
Collateral Documents in respect of the Trustee and the Holders is subject to and qualified
and limited in all respects by the Collateral Documents and actions that may be taken
thereunder.



          SECTION 11.2. Release of Liens on the Collateral. (a) The Liens of the Holders on
the Collateral shall automatically and without any need for any further action by any Person be
released:





     (i) in whole or in part, as applicable, as to all or any portion of property subject to
such Liens which has been taken by eminent domain, condemnation or other similar
circumstances;




     (ii) in whole or in part, upon the election of the Issuer following the Suspension Date
pursuant to Section 3.13;




     (iii) in whole upon:




     (1) satisfaction and discharge of this Indenture as set forth in
Section 8.1(a); or




     (2) a legal defeasance or covenant defeasance of this Indenture as set forth in
Section 8.1(b);



119









 






     (iv) in part, as to any property that (x) is sold, transferred or otherwise disposed of
by the Issuer or any Guarantor (other than to the Issuer or another Guarantor) in a
transaction not prohibited by this Indenture at the time of such sale, transfer or
disposition or (y) is owned or at any time acquired by a Guarantor that has been released
from its Note Guarantee in accordance with this Indenture, concurrently with the release of
such Note Guarantee;




     (v) pursuant to an amendment in accordance with Article IX;




     (vi) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is
released from its Subsidiary Guarantee in accordance with Section 10.2; and




     (vii) in part, in accordance with the applicable provisions of the Collateral
Documents.




          (b) In connection with any termination or release of any Liens of the Holders in all or
any portion of the Collateral pursuant to this Indenture or any of the Collateral Documents,
the Trustee shall, or shall cause the Collateral Agent to, promptly execute, deliver or
acknowledge all documents, instruments and releases necessary to release, reconvey to the
Issuer and/or the Guarantors, as the case may be, such Collateral or otherwise give effect
to, evidence or confirm such termination or release in accordance with the directions of the
Issuer and/or the Guarantor, as the case may be.




          (c) The release of any Collateral from the terms of the Collateral Documents shall not
be deemed to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent such Collateral is released pursuant to this Indenture or upon
termination of this Indenture. The Trustee and each of the Holders each acknowledge and
direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in
accordance with the terms of any Collateral Document and this Article XI shall not be
deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of
the terms of this Indenture.




          (d) Notwithstanding any provision to the contrary herein, as and when requested by the
Issuer or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and
deliver Uniform Commercial Code financing statement amendments or releases (which shall be
prepared by the Issuer or such Guarantor) solely to the extent necessary to delete property
or assets not required to be subject to a Lien under the Collateral Documents from the
description of assets in any previously filed financing statements. If requested in writing
by the Issuer or any Guarantor, the Trustee shall instruct the Collateral Agent to execute
and deliver such documents, instruments or statements (which shall be prepared by the Issuer
or such Guarantor) and to take such other action as the Company may request to evidence or
confirm that such property or assets not required to be subject to a Lien under the
Collateral Documents described in the immediately preceding sentence has been released from
the Liens of each of the Collateral Documents.



120









 





          SECTION 11.3. Authorization of Actions To Be Taken by the Trustee Under the Collateral
Documents. (a) Subject to the provisions of the Collateral Documents, the GM Intercreditor
Agreement and the other provisions of this Indenture, the Trustee may, in its sole discretion and
without the consent of the Holders, take, on behalf of the Holders, or direct, on behalf of the
Holders, the Collateral Agent to take, all actions it deems necessary or appropriate in order to
(i) enforce any of its rights or any of the rights of the Holders under the Collateral Documents
and (ii) upon the occurrence and during the continuance of an Event of Default, collect and receive
any and all amounts payable in respect of the Collateral in respect of the obligations of the
Issuer and the Guarantors hereunder and thereunder. Subject to the provisions of the Collateral
Documents, the other provisions of this Indenture and the GM Intercreditor Agreement, the Trustee
shall have the power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in
violation of the Collateral Documents or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interest and the interests of the Holders in
the Collateral (including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such
enactment, rule or order would impair the security interest hereunder or be prejudicial to the
interests of the Holders or the Trustee).





          (b) The Trustee shall not be responsible for the existence, genuineness or value of any
of the Collateral or for the validity, perfection, priority or enforceability of the Liens in
any of the Collateral, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder, except to the extent such action or omission
constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the
validity or sufficiency of the Collateral or any agreement or assignment contained therein,
for the validity of the title of the Issuer to the Collateral, for insuring the Collateral or
for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as
to the maintenance of the Collateral. The Trustee shall have no responsibility for
recording, filing, re-recording or refiling any financing statement, continuation statement,
document, instrument or other notice in any public office at any time or times or to
otherwise take any action to perfect or maintain the perfection of any security interest
granted to it under the Collateral Documents or otherwise.




          (c) Where any provision of the Collateral Documents requires that additional property or
assets be added to the Collateral, the Issuer and the Company shall, or shall cause the
applicable Subsidiary Guarantors to, take any and all actions reasonably required to cause
such additional property or assets to be added to the Collateral and to create and maintain a
valid and enforceable perfected first-priority security interest in such property or assets
(subject to Permitted Liens and other exceptions in the Collateral Documents) in favor of the
Collateral Agent for the benefit of the Holders in accordance with and to the extent required
under the Collateral Documents.




          (d) The Trustee, in giving any consent or approval under the Collateral Documents, shall
be entitled to receive, as a condition to such consent or approval, an Officer’s Certificate
to the effect that the action or omission for which consent or approval is to be given does
not violate this Indenture or the Collateral Documents, and the Trustee



121









 







shall be fully protected in giving such consent or approval on the basis of such
Officer’s Certificate.



ARTICLE XII




Miscellaneous




          SECTION 12.1. Notices. Notices given by publication shall be deemed given on the
first date on which publication is made, and notices given by first-class mail, postage prepaid,
shall be deemed given five calendar days after mailing. Any notice or communication shall be in
writing and delivered in person, by facsimile or mailed by first-class mail addressed as follows:



if to the Issuer or to any Guarantor:



American Axle & Manufacturing, Inc.

One Dauch Drive

Detroit, Michigan 48211

Attention: Chief Financial Officer

Facsimile No.: (313) 758-4238



With a copy to:



American Axle & Manufacturing Holdings, Inc.

One Dauch Drive

Detroit, Michigan 48211

Attention: Treasurer

Facsimile No.: (313) 758-3936



American Axle & Manufacturing, Inc.

One Dauch Drive

Detroit, Michigan 48211

Attention: General Counsel

Facsimile No.: (313) 758-3897



if to the Trustee:



U.S. Bank National Association

60 Livingston Avenue

St. Paul, MN 55107

Attn: American Axle & Manufacturing, Inc. Administrator

Facsimile No.: (651) 495-8097




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




122









 








          Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the registration books of the Registrar and shall be sufficiently given if
so mailed within the time prescribed.




          Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.




          SECTION 12.2. Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Issuer to the Trustee to take or refrain from taking any action under this
Indenture (except in connection with the original issuance of Notes on the date hereof), the Issuer
shall furnish to the Trustee:





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




     (ii) 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 have been
complied with.



          SECTION 12.3. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include:





     (i) a statement that the individual making such certificate or opinion has read such
covenant or condition;




     (ii) 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;




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




     (iv) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.



          In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s
Certificate or on certificates of public officials.




          SECTION 12.4. When Notes Disregarded. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuer, any Guarantor or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer shall be disregarded and deemed not to
be outstanding, except that, for the purpose of determining whether the Trustee shall be protected
in relying on any such direction, waiver or consent, only Notes which a Trust



123









 






Officer of the Trustee knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Notes outstanding at the time shall be considered in any such determination.




          SECTION 12.5. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.




          SECTION 12.6. Days Other than Business Days. If a payment date is not a Business Day,
payment shall be made on the next succeeding day that is not a Business Day, and no interest shall
accrue for the intervening period. If a regular Record Date is not a Business Day, the Record Date
shall not be affected.




          SECTION 12.7. Governing Law. This Indenture, the Notes and the Note Guarantees shall
be governed by, and construed in accordance with, the laws of the State of New York.




          SECTION 12.8. Waiver of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          SECTION 12.9. No Recourse Against Others. An incorporator, director, officer,
employee, stockholder or controlling person, as such, of the Issuer or any Guarantor shall not have
any liability for any obligations of the Issuer or any Guarantor under the Notes, the Note
Guarantees, the Collateral Documents or this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the
issue of the Notes.




          SECTION 12.10. Successors. All agreements of the Issuer and each Guarantor in this
Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in
this Indenture shall bind its successors.




          SECTION 12.11. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.




          SECTION 12.12. Variable Provisions. The Issuer initially appoints the Trustee as
Paying Agent and Registrar and custodian with respect to any Global Notes.




          SECTION 12.13. Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.




124









 








          SECTION 12.14. Direction by Holders to Enter into Collateral Documents. By accepting
a Note, each Holder is deemed to have authorized and directed the Trustee and the Collateral Agent,
as applicable, to (i) enter into the Collateral Documents, (ii) bind the Holders on the terms set
forth in the Collateral Documents and (iii) perform and observe their obligations under the
Collateral Documents.




          SECTION 12.15. Force Majeure. In no event shall the Trustee or the Collateral Agent
be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being
understood that the Trustee and the Collateral Agent shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.




          SECTION 12.16. USA Patriot Act. The parties hereto acknowledge that in accordance
with Section 326 of the USA Patriot Act the Trustee and the Trust Officers, like all financial
institutions and in order to help fight the funding of terrorism and money laundering, are required
to obtain, verify, and record information that identifies each person or legal entity that
establishes a relationship or opens an account. The parties to this agreement agree that they
shall provide the Trustee and the Trust Officers with such information as they may request in order
to satisfy the requirements of the USA Patriot Act.




          SECTION 12.17. First Lien Intercreditor Agreement. By accepting a Note, each Holder
agrees that it shall be bound by and shall take no actions contrary to the provisions of the First
Lien Intercreditor Agreement.




          SECTION 12.18. GM Intercreditor Agreement. By accepting a Note, each Holder agrees
that it shall be bound by and shall take no actions contrary to the provisions of the GM
Intercreditor Agreement.





125











 





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




	 	 	 	 	 
	AMERICAN AXLE & MANUFACTURING,
INC.,

	 
	 	  	
 	 
	 	by  	   /s/ MICHAEL K. SIMONTE
 	 
	 	 	Name:  	Michael K. Simonte 	 
	 	 	Title:  	Executive Vice President, Finance

& Chief Financial Officer 	 
	 



	 	 	 	 	 
	AMERICAN AXLE & MANUFACTURING
HOLDINGS, INC.,

	 
	 	  	
 	 
	 	by  	   /s/ MICHAEL K. SIMONTE
 	 
	 	 	Name:  	Michael K. Simonte 	 
	 	 	Title:  	Executive Vice President, Finance

& Chief Financial Officer 	 
	 



	 	 	 	 	 
	EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE 1 HERETO,

	 
	 	  	
 	 
	 	By  	   /s/ MICHAEL K. SIMONTE
 	 
	 	 	Name:  	Michael K. Simonte 	 
	 	 	Title:  	Executive Vice President, Finance

& Chief Financial Officer 	 
	 



[Signature Page to Indenture]




 









 








	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

	 
	 	  	
 	 
	 	by  	   /s/ RICHARD PROKOSCH
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Indenture]





 









 








SCHEDULE 1




Subsidiary Guarantors




AAM International Holdings, Inc.

DieTronik, Inc.

Oxford Forge, Inc.

MSP Industries Corporation

Colfor Manufacturing, Inc.

AccuGear, Inc.





 









 








EXHIBIT A




[FORM OF FACE OF NOTE]




[Applicable Restricted Notes Legend]

[Depository Legend, if applicable]





 









 








			
	No. [___]
	 	Principal Amount $[___],
	 
	 	as revised by the Schedule of Increases
	 
	 	or Decreases in the Global Note attached hereto
	 
	 	CUSIP NO.                    
	 
	 	ISIN NO.                    






AMERICAN AXLE & MANUFACTURING, INC.




9.25% Senior Secured Note due 2017




          American Axle & Manufacturing, Inc., a Delaware corporation, promises to pay to
[                                        ], or registered assigns, the initial principal amount set
forth on the Schedule of Increases or Decreases in the Global Note attached hereto, as revised by
the Schedule of Increases or Decreases in the Global Note attached hereto, on January 15, 2017.




          Interest Payment Dates: January 15 and July 15.




          Record Dates: January 1 and July 1.




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




	 	 	 	 	 
	AMERICAN AXLE & MANUFACTURING,
INC.,

	 
	 	  	
 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	by  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 
	TRUSTEE’S CERTIFICATE OF
AUTHENTICATION



U.S. BANK NATIONAL ASSOCIATION



as Trustee, certifies that this is one of the Notes

referred to in the Indenture.

 	 
	 	By:  	 	 
	 	 	Authorized Signatory  	             
       Date:
	 	 	 
	 




 









 








[FORM OF REVERSE SIDE OF NOTE]




9.25% Senior Secured Note due 2017




1. Interest




          American Axle & Manufacturing, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein called the
“Issuer”), promises to pay interest on the principal amount of this Note at the rate per
annum shown above.




          The Issuer shall pay interest semiannually on January 15 and July 15 of each year, with the
first interest payment to be made on July 15, 2010. Interest on the Notes shall accrue from the
most recent date to which interest has been paid on the Notes or, if no interest has been paid,
from December 18, 2009. The Issuer shall pay interest on overdue principal or premium, if any
(plus interest on such interest to the extent lawful), at the rate borne by the Notes to the extent
lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The
Issuer shall pay interest on overdue principal at the rate borne by the Notes plus 2.0% per annum.




          Interest shall accrue (in addition to the interest rate borne by the Notes) from and including
the date on which an Event of Default under Section 6.1(a)(vii) or 6.1(a)(viii)
shall occur to but excluding the date on which such Event of Default shall have been cured, at a
rate per annum equal to 2.0% of the principal amount of the Notes.




2. Method of Payment




          By no later than 10:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Issuer shall irrevocably deposit
with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any,
and/or interest. The Issuer shall pay interest (except Defaulted Interest) to the Persons who are
registered Holders of Notes at the close of business on the January 1 and July 1 next preceding the
Interest Payment Date even if Notes are cancelled, repurchased or redeemed after the Record Date
and on or before the Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Issuer shall pay principal, premium, if any, and interest in money
of the United States that at the time of payment is legal tender for payment of public and private
debts. Payments in respect of Notes represented by a Global Note (including principal, premium, if
any, and interest) shall be made by the transfer of immediately available funds to the accounts
specified by the Depositary. The Issuer shall make all payments in respect of a Definitive Note
(including principal, premium, if any, and interest) by mailing a check to the registered address
of each Holder thereof.




3. Paying Agent and Registrar




          Initially, U.S. Bank National Association, duly organized and existing under the laws of the
United States of America and having a corporate trust office at 60 Livingston Avenue, St. Paul, MN
55107-2292 (“Trustee”), shall act as Paying Agent and Registrar. The Issuer may appoint
and change any Paying Agent, Registrar or co-registrar without notice to any





 









 




Holder. The Issuer or any of its domestically incorporated Wholly-Owned Subsidiaries may act
as Paying Agent, Registrar or co-registrar.




4. Indenture




          The Issuer issued the Notes under an Indenture dated as of December 18, 2009 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Issuer, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture. Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and
Holders are referred to the Indenture for a statement of those 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 senior secured obligations of the Issuer. This Note is one of the 9.25% Senior
Secured Notes due 2017 referred to in the Indenture. The Notes include (i) the Initial Notes and
(ii) if and when issued, additional 9.25% Senior Secured Notes due 2017 of the Issuer that may be
issued from time to time under the Indenture subsequent to December 18, 2009 (herein called
“Additional Notes”).




5. Guarantee




          To guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Notes and all other amounts payable by the
Issuer under the Indenture, the Notes and the Collateral Documents when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, the Guarantors have unconditionally guaranteed (and future guarantors,
together with the Guarantors, shall unconditionally Guarantee), jointly and severally, such
obligations on a senior, secured basis pursuant to the terms of the Indenture.




6. Security




          The Initial Notes and Additional Notes are treated as a single class of securities under the
Indenture and shall be secured by first-priority Liens and security interests, subject to Permitted
Liens and certain other exceptions, in the Collateral on the terms and conditions set forth in the
Indenture and the Collateral Documents. The Collateral Agent holds the Collateral in trust for the
benefit of the Trustee and the Holders, in each case pursuant to the Collateral Documents. Each
Holder, by accepting this Note, is deemed to have authorized and directed the Trustee and the
Collateral Agent to enter into the Collateral Documents as the same may be in effect or may be
amended from time to time in accordance with their terms and the Indenture and to perform their
obligations and exercise their rights thereunder in accordance therewith.




7. Redemption




          (a) At any time prior to the First Call Date, the Issuer may redeem the Notes, in whole or in
part, at a redemption price equal to 100% of the principal amount thereof plus the Applicable
Premium plus accrued and unpaid interest, if any, to, the date of redemption (subject




2









 




to the rights of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date).




          (b) Prior to the First Call Date, not more than once in any twelve-month period, the Issuer
may redeem up to $42.5 million (representing 10% of the original principal amount of the Notes) in
principal amount of Notes at a redemption price equal to 103% of the principal amount thereof plus
accrued and unpaid interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).




          (c) On or after the First Call Date, the Issuer will be entitled to redeem all or a portion
of the Notes at the redemption prices (expressed in percentages of principal amount on the
redemption date), plus accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the 12-month period commencing on January 15 of the
years set forth below:




	 	 	 	 	 
	Period	 	Redemption Price
	2014
	 	 	104.625	%
	2015
	 	 	102.313	%
	2016 and thereafter
	 	 	100.000	%






          (d) On or prior to January 15, 2013, the Issuer may on any one or more occasions redeem up to
35% of the original principal amount of the Notes (calculated after giving effect to any issuance
of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings at a redemption
price of 109.25% of the principal amount thereof, plus accrued and unpaid interest, if any, to the
applicable Redemption Date (subject to the right of Holders of Notes on the relevant Record Date to
receive interest due on the relevant Interest Payment Date); provided that





     (i) at least 65% of the original principal amount of the Notes (calculated after giving
effect to any issuance of Additional Notes) remains outstanding after each such redemption;
and




     (ii) the redemption occurs within 90 days after the closing of such Equity Offering.



          Notice of any redemption pursuant to clause (d) may be given prior to the completion of such
Equity Offering, and any such redemption or notice may, at the Issuer’s discretion, be subject to
one or more conditions precedent, including, but not limited to, completion of the related Equity
Offering.




          (e) Any redemption pursuant to this paragraph 7 shall be made pursuant to the provisions of
Sections 5.1 through 5.7 of the Indenture.




3









 








8. Put Provisions




          (a) If a Change of Control occurs, unless the Issuer has exercised its right to redeem all of
the Notes under Section 5.1 of the Indenture, each Holder shall have the right to require
the Issuer to repurchase all or any part (in integral multiples of $1,000 except that no Note may
be tendered in part if the remaining principal amount would be less than $2,000) of such Holder’s
Notes at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued
and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on
the relevant Record Date to receive interest due on the relevant Interest Payment Date) as provided
in, and subject to the terms of, the Indenture.




          (b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to
Section 3.7(c) of the Indenture, the Issuer shall be required to make an offer to all
Holders to purchase the maximum principal amount of Notes at an offer price in cash in an amount
equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to
the date of purchase (subject to the rights of Holders of record on any Record Date to receive
payments of interest on the related Interest Payment Date). Holders of Notes that are the subject
of an offer to purchase will receive an Asset Disposition Offer from the Issuer prior to any
related purchase date and may elect to have such Note purchased pursuant to such offer by
completing the form entitled “Option of Holder To Elect Purchase” attached hereto, or transferring
its interest in such Note by book-entry transfer, to the Issuer or a Paying Agent at the address
specified in the notice at least three Business Days before the Asset Disposition Purchase Date.




          (c) In the event a Springing Maturity Offer is required pursuant to Section 3.10 of
the Indenture, each Holder shall have the right to require the Issuer to repurchase all or any part
(in integral multiples of $1,000 except that no Note may be tendered in part if the remaining
principal amount would be less than $2,000) of such Holder’s Notes on such date at a purchase price
in cash equal to 100% of the principal amount of the Notes plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date).




9. Denominations; Transfer; Exchange




          The Notes are in registered form without coupons in denominations of principal amount of
$2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes
for a period beginning 15 Business Days before an Interest Payment Date and ending on such Interest
Payment Date.




10. Persons Deemed Owners




          The registered Holder of this Note may be treated as the owner of it for all purposes.




4









 








11. Unclaimed Money




          If money for the payment of the principal of or premium, if any, or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request
unless an abandoned property law designates another person. After any such payment, Holders
entitled to the money must look only to the Issuer and not to the Trustee for payment.




12. Discharge and Defeasance




          Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate
some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the
Trustee money or U.S. Government Obligations for the payment of principal and interest on the Notes
to redemption or maturity, as the case may be.




13. Amendment; Waiver




          Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes, the
Note Guarantees, the GM Intercreditor Agreement and the Collateral Documents may be amended with
the written consent of the Holders of at least a majority in principal amount of the Notes then
outstanding (including without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for Notes) and (ii) any default (other than (x) with respect to
nonpayment or (y) in respect of a provision that cannot be amended without the written consent of
each Holder affected) or noncompliance with any provision may be waived with the written consent of
the Holders of a majority in principal amount of the Notes then outstanding (including without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes). Subject to certain exceptions set forth in the Indenture, without the consent of any
Holder, the Issuer, the Guarantors and the Trustee may amend the Indenture, the Notes, the Note
Guarantees, the GM Intercreditor Agreement or the Collateral Documents to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV or Article X of the
Indenture in respect of the assumption by a Successor Issuer of an obligation of the Issuer under
the Indenture or by a Person of obligations under a Note Guarantee, or to provide for
uncertificated Notes in addition to or in place of certificated Notes, or to add Guarantees with
respect to the Notes or to secure the Notes and the Note Guarantees, or to release a Guarantor in
accordance with the Indenture, to release Liens in favor of the Collateral Agent in the Collateral
as provided under the collateral release provisions, or to add additional covenants or surrender
rights and powers conferred on the Issuer or any Guarantor, or to make any change that does not
adversely affect the rights of any Holder in any material respect or to conform the text of the
Indenture, the Notes, the Note Guarantees or the Collateral Documents to the “Description of notes”
section of the Offering Memorandum in certain cases.




14. Defaults and Remedies




          If an Event of Default occurs and is continuing, the Trustee or Holders of at least 25% in
aggregate principal amount of the outstanding Notes then outstanding may declare all the Notes to
be due and payable immediately. Certain events of bankruptcy or insolvency are Events




5









 




of Default which shall result in the Notes being due and payable immediately upon the
occurrence of such Events of Default.




          Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security
reasonably satisfactory to it. Subject to the terms of the GM Intercreditor Agreement, the
Collateral Documents and certain restrictions, Holders of a majority in principal amount of the
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default or Event of Default
in payment of principal or interest) if it determines that withholding notice is in their interest.




15. Trustee Dealings with the Issuer




          Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with and collect obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were not Trustee.




16. No Recourse Against Others




          A director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor
shall not have any liability for any obligations of the Issuer or any Guarantor under the Notes,
the Indenture, the Note Guarantees, the Collateral Documents or for any claim based on, in respect
of, or by reason of, such obligations or their creation. By accepting a Note, each Holder waives
and releases all such liability. The waiver and release shall be part of the consideration for the
issue of the Notes.




17. Authentication




          This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent acting on its behalf) manually signs the certificate of authentication on the
other side of this Note.




18. 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 entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors
Act).




19. CUSIP Numbers and ISINs




          The Issuer has caused CUSIP numbers and ISINs to be printed on the Notes. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only
on the other identification numbers placed thereon.




6









 








20. Successor Entity




          When a successor entity assumes, in accordance with the Indenture, all the obligations of its
predecessor under the Notes and the Indenture, and immediately before and thereafter no Default or
Event of Default exists and all other conditions of the Indenture are satisfied, the predecessor
entity will be released from those obligations.



21. Governing Law




          This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.




          The Issuer shall furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture which has in it the text of this Note in larger type. Requests may be made
to:





American Axle & Manufacturing, Inc.

One Dauch Drive

Detroit, Michigan 48211

Attention: General Counsel




7









 








ASSIGNMENT FORM



To assign this Note, fill in the form below:



I or we assign and transfer this Note to




	 	 	 
	 

	 	 
	 

	 	(Print or type assignee’s name, address and zip code)
	 
	 	 
	 

	 	 
	 

	 	(Insert assignee’s soc. sec. or tax I.D. No.)





and irrevocably appoint                      agent to transfer this Note on the books of the Issuer.
The agent may substitute another to act for him.




	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 
	 

	 	 
	 	 	 	 	 	 





	 	 	 	 	 
	Signature Guarantee:

	 	 	 	 
	 

	 	 	 	 
	 

	 	(Signature must be guaranteed)	 	 






	 
	Sign exactly as your name appears on the other side of this Note.






The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.



The
undersigned hereby certifies that it
o is / o is not an Affiliate of the Issuer and
that, to its knowledge, the proposed transferee o is / o is not an Affiliate of the
Issuer.



In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Issuer or any Affiliate
of the Issuer, the undersigned confirms that such Notes are being:




CHECK ONE BOX BELOW:




	 	 	 	 	 
	1

	 	o
	 	acquired for the undersigned’s own account, without transfer; or
	 
	 	 	 	 
	2

	 	o
	 	transferred to the Issuer, the Company, or any Subsidiary thereof; or
	 
	 	 	 	 
	3

	 	o
	 	transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933,
as amended (the
“Securities Act”); or






 









 






	 	 	 	 	 
	4

	 	o
	 	transferred pursuant to and in compliance with Regulation S under the Securities Act; or
	 
	 	 	 	 
	5

	 	o
	 	transferred pursuant to another available exemption from the registration requirements of the Securities
Act of 1933.





Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof; provided,
however, that if box (4) or, (5) is checked, the Trustee or the Issuer may require, prior to
registering any such transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Issuer may reasonably request to confirm
that such transfer is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933, such as the exemption provided by Rule
144 under such Act.




	 	 	 	 	 
	 
	 

	 	 	 	 
	 

	 	 	 	Signature
	Signature Guarantee:
	 	 	 	 
	 
	 	 	 	 
	 
	 

	 	 	 	 
	(Signature must be guaranteed)

	 	 	 	Signature
	 
	 	 	 	 
	 




The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.



TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.



The undersigned represents and warrants that it is purchasing this Note for its own account or an
account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.




Dated:                                                                     NOTICE: To be executed by an executive officer



 









 





[TO BE ATTACHED TO GLOBAL NOTES]




SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE




          The initial principal amount of the Note shall be $ [___]. The following increases or
decreases in this Global Note have been made:




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





 









 





OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Issuer pursuant to
Section 3.7, 3.9 or 3.10 of the Indenture, check the box:




  o         o            o

3.7         3.9         3.10




          If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 3.7, 3.9 or 3.10 of the Indenture, state the amount in principal
amount (must be in denominations of integral multiples of $1,000): $




	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Your Signature:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as your name appears on the
other side of the Note)






	 	 	 	 	 
	Signature Guarantee:

	 	 	 	 
	 

	 	 	 	 
	 

	 	(Signature must be guaranteed)	 	 





The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.




 









 








          The undersigned have guaranteed this Note on a senior secured basis as provided in the
Indenture.




	 	 	 	 	 
	 	[GUARANTOR],

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: