exv4w2






Exhibit 4.2




EXECUTION COPY




 

 






LEAR CORPORATION,

as Issuer




THE SUBSIDIARY GUARANTORS PARTY HERETO, as Subsidiary Guarantors



AND



THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee



 





7.875% SENIOR NOTES DUE 2018



8.125% SENIOR NOTES DUE 2020



FIRST SUPPLEMENTAL INDENTURE DATED AS OF



MARCH 26, 2010



 





 

 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 
	ARTICLE 1    ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE	 	1
	SECTION 1.01.
	 	Establishment	 	1
	SECTION 1.02.
	 	Definitions	 	2
	SECTION 1.03.
	 	Other Definitions	 	29
	SECTION 1.04.
	 	Incorporation by Reference of Trust Indenture Act	 	29
	SECTION 1.05.
	 	Rules of Construction	 	30
	 
	 	 	 	 
	ARTICLE 2    THE NOTES	 	30
	SECTION 2.01.
	 	Form and Dating	 	30
	SECTION 2.02.
	 	Execution and Authentication	 	31
	SECTION 2.03.
	 	Registrar and Paying Agent	 	31
	SECTION 2.04.
	 	Paying Agent to Hold Money in Trust	 	32
	SECTION 2.05.
	 	Holder Lists	 	32
	SECTION 2.06.
	 	Transfer and Exchange	 	32
	SECTION 2.07.
	 	Replacement Notes	 	35
	SECTION 2.08.
	 	Outstanding Notes	 	35
	SECTION 2.09.
	 	Treasury Notes	 	36
	SECTION 2.10.
	 	Temporary Notes	 	36
	SECTION 2.11.
	 	Cancellation	 	36
	SECTION 2.12.
	 	CUSIP or ISIN Numbers	 	36
	SECTION 2.13.
	 	Additional Notes	 	36
	 
	 	 	 	 
	ARTICLE 3    REDEMPTION AND PREPAYMENT	 	37
	SECTION 3.01.
	 	Notices to Trustee	 	37
	SECTION 3.02.
	 	Selection of Notes to be Redeemed	 	37
	SECTION 3.03.
	 	Notice of Redemption	 	38
	SECTION 3.04.
	 	Effect of Notice Upon Redemption	 	38
	SECTION 3.05.
	 	Deposit of Redemption Price	 	39
	SECTION 3.06.
	 	Notes Redeemed in Part	 	39
	SECTION 3.07.
	 	Optional Redemption for the 2018 Notes	 	39
	SECTION 3.08.
	 	Optional Redemption for the 2020 Notes	 	40






 









 






	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 
	SECTION 3.09.
	 	Mandatory Redemption	 	41
	 
	 	 	 	 
	ARTICLE 4    COVENANTS	 	41
	SECTION 4.01.
	 	Payment of Notes	 	41
	SECTION 4.02.
	 	Maintenance of Office or Agency	 	41
	SECTION 4.03.
	 	Reports	 	42
	SECTION 4.04.
	 	Compliance Certificate	 	42
	SECTION 4.05.
	 	Restricted Payments	 	43
	SECTION 4.06.
	 	Dividend and Other Payment Restrictions Affecting Subsidiaries	 	46
	SECTION 4.07.
	 	Limitation on Indebtedness	 	47
	SECTION 4.08.
	 	Limitation on Sales of Assets and Subsidiary Stock	 	50
	SECTION 4.09.
	 	Affiliate Transactions	 	53
	SECTION 4.10.
	 	Liens	 	54
	SECTION 4.11.
	 	Offer to Repurchase Upon Change of Control	 	54
	SECTION 4.12.
	 	Corporate Existence	 	55
	SECTION 4.13.
	 	Additional Subsidiary Guarantors	 	55
	SECTION 4.14.
	 	Limitation on Sale and Leaseback Transactions	 	55
	SECTION 4.15.
	 	Suspension of Covenants	 	56
	 
	 	 	 	 
	ARTICLE 5    SUCCESSORS	 	57
	SECTION 5.01.
	 	Merger, Consolidation, or Sale of Assets	 	57
	SECTION 5.02.
	 	Successor Corporation Substituted	 	58
	 
	 	 	 	 
	ARTICLE 6    DEFAULTS AND REMEDIES	 	58
	SECTION 6.01.
	 	Events of  Default	 	59
	SECTION 6.02.
	 	Acceleration	 	60
	SECTION 6.03.
	 	Other Remedies	 	61
	SECTION 6.04.
	 	Waiver of Past Defaults	 	61
	SECTION 6.05.
	 	Control by Majority	 	61
	SECTION 6.06.
	 	Limitation on Suits	 	61
	SECTION 6.07.
	 	Rights of Holders of Notes to Receive Payment	 	62
	SECTION 6.08.
	 	Collection Suit by Trustee.	 	62
	SECTION 6.09.
	 	Trustee May File Proofs of Claim	 	62






 









 






	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 
	SECTION 6.10.
	 	Priorities	 	63
	SECTION 6.11.
	 	Undertaking for Costs	 	63
	 
	 	 	 	 
	ARTICLE 7    TRUSTEE	 	63
	SECTION 7.01.
	 	Duties of Trustee	 	63
	SECTION 7.02.
	 	Rights of the Trustee	 	64
	SECTION 7.03.
	 	Individual Rights of Trustee	 	66
	SECTION 7.04.
	 	Trustee’s Disclaimer	 	66
	SECTION 7.05.
	 	Notice of Defaults	 	66
	SECTION 7.06.
	 	Reports by Trustee to Holder	 	66
	SECTION 7.07.
	 	Compensation and Indemnity	 	67
	SECTION 7.08.
	 	Replacement of Trustee	 	68
	SECTION 7.09.
	 	Successor Trustee by Merger, etc	 	68
	SECTION 7.10.
	 	Eligibility; Disqualification	 	69
	SECTION 7.11.
	 	Preferential Collection of Claims Against Company	 	69
	 
	 	 	 	 
	ARTICLE 8    LEGAL DEFEASANCE AND COVENANT DEFEASANCE	 	69
	SECTION 8.01.
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	69
	SECTION 8.02.
	 	Legal Defeasance and Discharge	 	69
	SECTION 8.03.
	 	Covenant Defeasance	 	69
	SECTION 8.04.
	 	Conditions to Legal or Covenant Defeasance	 	70
	SECTION 8.05.
	 	Deposited Money and U.S. Government Securities to Be Held in Trust;	 	 
	 
	 	Other Miscellaneous Provisions	 	71
	SECTION 8.06.
	 	Satisfaction and Discharge	 	72
	SECTION 8.07.
	 	Repayment to Company	 	72
	SECTION 8.08.
	 	Reinstatement	 	72
	SECTION 8.09.
	 	Survival	 	73
	 
	 	 	 	 
	ARTICLE 9    AMENDMENT, SUPPLEMENT AND WAIVER	 	73
	SECTION 9.01.
	 	Without Consent of Holder	 	73
	SECTION 9.02.
	 	With Consent of Holders of Notes	 	74
	SECTION 9.03.
	 	Compliance with Trust Indenture Act	 	75
	SECTION 9.04.
	 	Revocation and Effect of Consents	 	75






 









 






	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 
	SECTION 9.05.
	 	Trustee to Sign Amendments	 	75
	 
	 	 	 	 
	ARTICLE 10      SUBSIDIARY GUARANTEES	 	75
	SECTION 10.01.
	 	Subsidiary Guarantees	 	76
	SECTION 10.02.
	 	Limitation on Liability	 	77
	SECTION 10.03.
	 	Successors and Assigns	 	77
	SECTION 10.04.
	 	No Waiver	 	77
	SECTION 10.05.
	 	Release of Subsidiary Guarantor	 	77
	SECTION 10.06.
	 	Contribution	 	77
	 
	 	 	 	 
	ARTICLE 11      MISCELLANEOUS	 	78
	SECTION 11.01.
	 	Trust Indenture Act Controls	 	78
	SECTION 11.02.
	 	Notices	 	78
	SECTION 11.03.
	 	Communication by Holders of Notes with Other Holders of Notes	 	79
	SECTION 11.04.
	 	Certificate and Opinion as to Conditions Precedent	 	79
	SECTION 11.05.
	 	Statements Required in Certificate or Opinion	 	79
	SECTION 11.06.
	 	Rules by Trustee and Agents	 	80
	SECTION 11.07.
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	80
	SECTION 11.08.
	 	Governing Law; Waiver of Jury Trial	 	80
	SECTION 11.09.
	 	No Adverse Interpretation of Other Agreements	 	80
	SECTION 11.10.
	 	Successors	 	80
	SECTION 11.11.
	 	Severability	 	81
	SECTION 11.12.
	 	Counterpart Originals	 	81
	SECTION 11.13.
	 	Table of Contents, Headings, etc.	 	81
	SECTION 11.14.
	 	Force Majeure	 	81







 









 








LEAR CORPORATION

RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939

AND INDENTURE, DATED AS OF MARCH 26, 2010




	 	 	 	 	 	 
	Section of Trust Indenture Act of 1939	 	Section(s) of Indenture
	ss. 310
	 	(a) (1)	 	 	7.10
	 
	 	(a) (2)	 	 	7.10
	 
	 	(a) (3)	 	 	N.A.
	 
	 	(a) (4)	 	 	N.A.
	 
	 	(a) (5)	 	 	7.10
	 
	 	(b)	 	 	7.08, 7.10
	 
	 	(c)	 	 	N.A.
	ss. 311
	 	(a)     	 	 	7.11
	 
	 	(b)	 	 	7.11
	 
	 	(c)	 	 	N.A.
	ss. 312
	 	(a)     	 	 	2.05
	 
	 	(b)	 	 	2.05
	 
	 	(c)	 	 	2.05
	ss. 313
	 	(a)    	 	 	7.06
	 
	 	(b)(1)	 	 	N.A.
	 
	 	(b)(2)	 	 	7.06, 7.07
	 
	 	(c)	 	 	7.06
	 
	 	(d)	 	 	7.06
	ss. 314
	 	(a)    	 	 	4.03, 4.04
	 
	 	(b)	 	 	N.A.
	 
	 	(c) (1)	 	 	13.04
	 
	 	(c) (2)	 	 	13.04
	 
	 	(c) (3)	 	 	N.A.
	 
	 	(d)	 	 	N.A.
	 
	 	(e)	 	 	13.05
	ss. 315
	 	(a)     	 	 	7.01
	 
	 	(b)	 	 	7.05, 11.02
	 
	 	(c)	 	 	7.01
	 
	 	(d)	 	 	7.01
	 
	 	(e)	 	 	6.11
	ss. 316
	 	(a) (1) (A)	 	 	6.05
	 
	 	(a) (1) (B)	 	 	6.04
	 
	 	(a) (2)	 	 	N.A.
	 
	 	(a) (last sentence)	 	 	6.11
	 
	 	(b)	 	 	6.07
	ss. 317
	 	(a) (1)      	 	 	6.08
	 
	 	(a) (2)	 	 	6.09
	 
	 	(b)	 	 	2.04
	ss. 318
	 	(a)     	 	 	13.01
	 
	 	(b)	 	 	N.A.
	 
	 	(c)	 	 	13.01








 




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






 











 





     This FIRST SUPPLEMENTAL INDENTURE, dated as of March 26, 2010 (this “Supplemental
Indenture”), is by and among Lear Corporation, a Delaware corporation (such corporation and any
successor as defined in the Base Indenture, the “Company”), the Subsidiary Guarantors party hereto
and The Bank of New York Mellon Trust Company, N.A., as trustee (such institution and any successor
as defined in the Base Indenture, the “Trustee”).



WITNESSETH:




     WHEREAS, the Company has previously executed and delivered an Indenture, dated as of March 26,
2010 (the “Base Indenture”), with the Trustee providing for the issuance from time to time of one
or more series of the Company’s senior debt securities;



     WHEREAS, Section 301 of the Base Indenture provides that the Company and the Trustee may enter
into an indenture supplemental to the Base Indenture to establish the form or terms of Securities
of any series as permitted by Section 301 and Section 901 of the Base Indenture;



     WHEREAS, the Company is entering into this First Supplemental Indenture to establish the form
and terms of its 7.875% Senior Notes due 2018 (the “2018 Notes”) and its 8.125% Senior Notes due
2020 (the “2020 Notes,” and together with the 2018 Notes, the “Notes”);



     WHEREAS, the Base Indenture is incorporated herein by reference and the Base Indenture, as
supplemented by this First Supplemental Indenture is herein called the “Indenture” as that term is
defined in the Base Indenture; and



     WHEREAS, all conditions necessary to authorize the execution and delivery of this First
Supplemental Indenture and to make it a valid and binding obligation of the Company have been done
or performed.



     NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Company
and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the Notes.



ARTICLE 1 ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE



SECTION 1.01. Establishment.




          (a) There are hereby established two new series of Securities to be issued under this
Indenture, to be designated as the Company’s “7.875% Senior Notes due 2018” and “8.125% Senior
Notes due 2020.”




          (b) There are to be authenticated and delivered on the date hereof (i) Three Hundred Fifty
Million Dollars ($350,000,000) aggregate principal amount of the 2018 Notes and (ii) (i) Three
Hundred Fifty Million Dollars ($350,000,000) aggregate principal amount of the 2020 Notes.




          (c) The Notes shall be issued in the form of one or more permanent Notes in substantially the
form set out in Exhibit A-1, in the case of the 2018 Notes, and Exhibit A-2, in the
case of the 2020 Notes.







1









 








          (d) Each Note shall be dated the date of authentication thereof and shall bear interest from
the date of original issuance thereof or from the most recent date to which interest has been paid
or duly provided for.




          (e) With respect to the Notes (and any Subsidiary Guarantees endorsed thereon) only, the Base
Indenture shall be supplemented pursuant to Sections 201, 301 and 901 thereof to establish the
terms of the Notes (and any Subsidiary Guarantees endorsed thereon) as set forth in this First
Supplemental Indenture, including as follows:





	 	(i)	 	The provisions of Articles I, III, IV, V, VI, VII, VIII, IX, X,
XI, XII, XIII, XIV, XV and XVI of the Base Indenture are deleted and replaced
in their entirety by the provisions of Articles 1, 3, 4, 5, 6, 7, 8, 9, 10 and
11 of this First Supplemental Indenture;
	 
	 	(ii)	 	The form and terms of the securities representing the Notes
required to be established pursuant to Article II of the Base Indenture shall
be established in accordance with Article 2 of this First Supplemental
Indenture;




To the extent that the provisions of this First Supplemental Indenture (including those referred to
in clauses (i) and (ii) immediately above) conflict with any provision of the Base Indenture, the
provisions of this First Supplemental Indenture shall govern and be controlling, solely with
respect to the Notes (and any Subsidiary Guarantees endorsed thereon).




          (f) Unless otherwise expressly specified, references in this First Supplemental Indenture to
specific Article numbers or Section numbers refer to Articles and Sections contained in this First
Supplemental Indenture, and not the Base Indenture or any other document.



SECTION 1.02. Definitions




          (a) All capitalized terms used herein and not otherwise defined below shall have the meanings
ascribed thereto in the Base Indenture.




          (b) The following are definitions used in this First Supplemental Indenture and to the extent
that a term is defined both herein and in the Base Indenture, unless otherwise specified, the
definition in this First Supplemental Indenture shall govern solely with respect to the Notes (and
any Guarantee endorsed thereon).




     “Additional Assets” means:



     (1) any property or assets (other than Indebtedness) to be used by the Company or a Restricted
Subsidiary;



     (2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or



     (3) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary described in clauses
(2) or (3) above is primarily engaged in a Permitted Business.



2









 





     “Additional 2018 Notes” means, subject to the Company’s compliance with Section 4.07, 7.875%
Senior Notes due 2018 issued from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Indenture).



     “Additional 2020 Notes” means, subject to the Company’s compliance with Section 4.07, 8.125%
Senior Notes due 2020 issued from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Indenture).



     “Additional Notes” means the Additional 2018 Notes and the Additional 2020 Notes.



     “Adjusted Treasury Rate for the 2018 Notes” means, with respect to any redemption date for the
2018 Notes, (1) the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release designated “H.15(519)”
or any successor publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue for the 2018 Notes (if no maturity is within three
months before or after March 15, 2014, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue for the 2018 Notes shall be determined and the
Adjusted Treasury Rate for the 2018 Notes shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month) or (2) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such
yields, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue for the 2018 Notes (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on the third Business
Day immediately preceding the redemption date, in each case of (1) and (2), plus 0.50%.



     “Adjusted Treasury Rate for the 2020 Notes” means, with respect to any redemption date for the
2020 Notes, (1) the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release designated “H.15(519)”
or any successor publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue for the 2020 Notes (if no maturity is within three
months before or after March 15, 2015, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue for the 2020 Notes shall be determined and the
Adjusted Treasury Rate for the 2020 Notes shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month) or (2) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such
yields, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue for the 2020 Notes (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on the third Business
Day immediately preceding the redemption date, in each case of (1) and (2), plus 0.50%.



     “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. For purposes of the provisions described
under Section 4.08 and Section 4.09 only, “Affiliate” shall also mean any beneficial owner of
shares representing 10% or more of the total voting



3









 







power of the
Voting Stock (on a fully diluted basis) of the Company or of rights or warrants to purchase
such Voting Stock (whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.




	 	 	“Agent” means any Registrar or Paying Agent.





     “Applicable Premium for the 2018 Notes” means, with respect to a 2018 Note at any redemption
date, the greater of (1) 1.00% of the principal amount of such 2018 Note and (2) the excess of (A)
the present value at such redemption date of (i) the redemption price of such 2018 Note on March
15, 2014 (such redemption price being described in the first paragraph in this section exclusive of
any accrued interest), plus (ii) all required remaining scheduled interest payments due on such
2018 Note through March 15, 2014 (but excluding accrued and unpaid interest to the redemption
date), computed using a discount rate equal to the Adjusted Treasury Rate for the 2018 Notes, over
(B) the principal amount of such note on such redemption date.



     “Applicable Premium for the 2020 Notes” means, with respect to a 2020 Note at any redemption
date, the greater of (1) 1.00% of the principal amount of such 2020 Note and (2) the excess of (A)
the present value at such redemption date of (i) the redemption price of such 2020 Note on March
15, 2015 (such redemption price being described in the first paragraph in this section exclusive of
any accrued interest), plus (ii) all required remaining scheduled interest payments due on such
2020 Note through March 15, 2015 (but excluding accrued and unpaid interest to the redemption
date), computed using a discount rate equal to the Adjusted Treasury Rate for the 2020 Notes, over
(B) the principal amount of such note on such redemption date.



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



     “Asset Disposition” means any sale, lease, transfer or other disposition (or series of sales,
leases, transfers or dispositions that are part of a common plan) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation, or similar transaction
(each referred to for the purposes of this definition as a “disposition”), of:



     (1) any shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying
shares or shares required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary),



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



     (3) any other assets of the Company or any Restricted Subsidiary outside of the ordinary
course of business of the Company or such Restricted Subsidiary,



     other than, in the case of clauses (1), (2) and (3) above,



     (A) a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary;



     (B) for purposes of the provisions described under Section 4.08 only, a disposition subject to
Section 4.05;



4









 





     (C) a disposition of assets with a Fair Market Value of less than $10.0 million;



     (D) a sale of accounts receivable and related assets (i) of the type specified in the
definition of “Qualified Receivables Transaction” or (ii) pursuant to factoring programs on
customary market terms for such transactions and with respect to receivables of, and generated by,
the Company or any Subsidiary;



     (E) a transfer of accounts receivable and related assets of the type specified in the
definition of “Qualified Receivables Transaction” (or a fractional undivided interest therein) by a
Receivables Entity in a Qualified Receivables Transaction;



     (F) the exchange or transfer within China of Chinese Acceptance Notes by Chinese Subsidiaries
of the Company;



     (G) any sale, lease, transfer or other disposition of assets of a Foreign Subsidiary of the
Company to joint ventures that are not Restricted Subsidiaries of the Company so long as such
Foreign Subsidiary has received Fair Market Value for such assets; and



     (H) a disposition of all or substantially all the Company’s assets (as determined on a
Consolidated basis) in accordance with the covenant described under Section 5.01.



     “Attributable Debt” means, with respect to any Sale and Leaseback Transaction that does not
result in a Capitalized Lease Obligation, the present value (computed in accordance with GAAP) of
the total obligations of the lessee for rental payments during the remaining term of the lease
included in such Sale and Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon payment of a penalty,
the Attributable Debt shall be the lesser of:



     (i) the Attributable Debt determined assuming termination upon the first date such lease may
be terminated (in which case the Attributable Debt shall also include the amount of the penalty,
but no rent shall be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated) and



     (ii) the Attributable Debt determined assuming no such termination.



     “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 number of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness or scheduled 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.



     “Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New
York.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up,
liquidation, reorganization or the relief of debtors.



5









 





     “Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of the board of directors of the Company.



     “Business Day” means each day which is not a Legal Holiday.



     “Capital Stock” of any Person means 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 Preferred Stock, but excluding any debt securities convertible
into such equity.



     “Capitalized Lease Obligations” 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 determined in accordance with GAAP.



     “Cases” means the cases of the Company and certain of its Subsidiaries before the Bankruptcy
Court.



     “Certificated Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 or 2.10 hereof, in substantially the form of Exhibit
A-1 or Exhibit A-2 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.



     “Chinese Acceptance Notes” means acceptance notes issued by Chinese banks in the ordinary
course of business for the account of any direct or indirect Chinese Subsidiary of the Company or
customers thereof to effect the current payment of goods and services in accordance with customary
trade terms in China.



     “Change of Control” means:



     (1) any “person” (as such term is 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 for purposes of this clause (1) such person shall be deemed to have “beneficial ownership” of
all shares that any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company;



     (2) the first day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors;



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



     (4) the merger or consolidation of the Company with or into another Person or the merger of
another Person with or into the Company, or the sale of all or substantially all the assets of the
Company (as determined on a Consolidated basis) to another Person, and, in the case of any such
merger or consolidation, the securities of the Company that are outstanding immediately prior to
such transaction and which represent 100% of the aggregate voting power of the Voting Stock of the
Company are changed into or exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent immediately after
such transaction, at least a majority of the aggregate voting power of the Voting Stock of the
surviving Person or transferee.



6









 





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



     “Comparable Treasury Issue for the 2018 Notes” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining term of the 2018
Notes from the redemption date to March 15, 2014, that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of U.S. Dollar
denominated corporate debt securities of a maturity most nearly equal to March 15, 2014.



     “Comparable Treasury Issue for the 2020 Notes” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining term of the 2020
Notes from the redemption date to March 15, 2015, that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of U.S. Dollar
denominated corporate debt securities of a maturity most nearly equal to March 15, 2015.



     “Comparable Treasury Price” means, with respect to any redemption date, if clause (2) of the
definition of “Adjusted Treasury Rate for the 2018 Notes” or “Adjusted Treasury Rate for the 2020
Notes” is applicable, the average of three, or if not possible, such lesser number as is obtained
by the Company, Reference Treasury Dealer Quotations for such redemption date.



     “Consolidated Interest Coverage Ratio” as of any date of determination means the ratio of:



     (1) the aggregate amount of EBITDA for the period of the most recent four consecutive fiscal
quarters ending prior to the date of such determination for which financial statements are
available to



     (2) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:



     (A) if the Company or any Restricted Subsidiary 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 Interest Coverage Ratio is an
Incurrence of Indebtedness, 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 and the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period;



     (B) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than Indebtedness
Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio, EBITDA and Consolidated Interest Expense for such period
shall be calculated on a pro forma basis as if such discharge had occurred on the first day of such
period and as if the Company or such Restricted Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;



     (C) if since the beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, the EBITDA for such period shall be reduced by an amount equal to the
EBITDA (if positive) directly attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the EBITDA (if negative) directly
attributable thereto



7









 




for such period and 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 Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its Restricted Subsidiaries in connection with such Asset Disposition
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);




     (D) if since the beginning of such period the Company or any Restricted Subsidiary (by merger
or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person that
becomes a 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 an operating unit, division or line of a business, 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; and



     (E) 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 Restricted Subsidiary since the beginning
of such period shall have made any Asset Disposition or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (C) or (D) above if made by the Company
or a Restricted Subsidiary during such period, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto as if such Asset Disposition,
Investment or acquisition of assets occurred on the first day of such period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, Asset Disposition or other Investment, the amount of income, EBITDA or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred
in connection therewith, the pro forma calculations shall be determined in good faith by a
responsible Financial Officer of the Company; provided that any pro forma adjustments shall be
limited to those that are (a) reasonably identifiable and factually supportable and (b) have
occurred or are reasonably expected to occur in the next twelve months following the date of such
calculation, in the reasonable judgment of a responsible Financial Officer of the Company.



     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
as at the date of determination in excess of 12 months). If any Indebtedness is Incurred or repaid
under a revolving credit facility and is being given pro forma effect, the interest on such
Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the
four fiscal quarters subject to the pro forma calculation.



     “Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its Consolidated Restricted Subsidiaries, plus, to the extent Incurred by the Company
and its Consolidated Restricted Subsidiaries in such period but not included in such interest
expense, without duplication:



     (1) interest expense attributable to Capitalized Lease Obligations and the interest expense
attributable to leases constituting part of a Sale and Leaseback Transaction that does not result
in a Capitalized Lease Obligation,



8









 





     (2) amortization of debt discount and debt issuance costs,



     (3) capitalized interest,



     (4) non-cash interest expense,



     (5) commissions, discounts and other fees and charges attributable to letters of credit and
bankers’ acceptance financing,



     (6) interest accruing on any Indebtedness of any other Person to the extent such Indebtedness
is Guaranteed by (or secured by the assets of) the Company or any Restricted Subsidiary and such
Indebtedness is in default under its terms or any payment is actually made in respect of such
Guarantee,



     (7) net payments made or received pursuant to Hedging Obligations under Interest Rate
Agreements (including amortization of fees),



     (8) dividends paid in cash or Disqualified Stock in respect of (A) all Preferred Stock of
Restricted Subsidiaries and (B) all Disqualified Stock of the Company, in each case held by Persons
other than the Company or a Restricted Subsidiary, and



     (9) interest Incurred in connection with investments in discontinued operations,


and less, to the extent included in such total interest expense, (A) any breakage costs of Hedging
Obligations terminated in connection with the offering of the notes on the Issue Date and the
application of the net proceeds therefrom, (B) the amortization during such period of capitalized
financing costs, provided, however, that, for any financing consummated after the Issue Date, the
aggregate amount of amortization relating to any such capitalized financing costs deducted in
calculating Consolidated Interest Expense shall not exceed 5% of the aggregate amount of the
financing giving rise to such capitalized financing costs and (C) any accrued interest expense
subsequently discharged pursuant to applicable bankruptcy provisions. Notwithstanding anything to
the contrary contained herein, Consolidated Interest Expense for any period shall include any
interest income during such period.




     “Consolidated Net Income” means, for any period, the net income of the Company and its
Consolidated Subsidiaries for such period; provided, however, that there shall not be included in
such Consolidated Net Income:



     (1) any net income of any Person (other than the Company) if such Person is not a Restricted
Subsidiary, except that:




     (A) 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 a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other distribution
made to a Restricted Subsidiary, to the limitations contained in clause (3) below);




     (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 a Restricted Subsidiary; and




     (C) the Company’s or any Restricted Subsidiary’s equity in the net income of a joint
venture or similar entity of which the Company or a Restricted Subsidiary owns, through



9









 






securities or otherwise, at least 25% of the voting or economic interests and that is
not a Restricted Subsidiary shall be included in such Consolidated Net Income to the extent
permissible under GAAP; provided, however ̧ that such equity in the net income of such joint
venture shall not be included if cash equal to such equity in the net income of such joint
venture is not readily procurable by the Company from such joint venture;



     (2) any net income (or loss) of any Person acquired by the Company or a Subsidiary of the
Company in a pooling of interests transaction for any period prior to the date of such acquisition;



     (3) any net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to
restrictions on the payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company (but, in the case of any Foreign Subsidiary,
only to the extent that the payment of cash dividends or the making of cash distributions, in each
case equal to such net income (or a portion thereof) for such period, by such Foreign Subsidiary to
the Company is contractually restricted (with the amount of such cash payments that is
contractually restricted being determined in good faith by a Financial Officer of the Company)),
except that:




     (A) 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
actually distributed by such Restricted Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution made to another Restricted Subsidiary, to the limitation
contained in this clause); and




     (B) the net loss of any such Restricted Subsidiary for such period shall not be
excluded in determining such Consolidated Net Income; provided, however, that such net
losses may be applied to the computation of Consolidated Net Income in subsequent periods
(i) if Consolidated Net Income in any period is zero or less or (ii) to the extent that the
application of such losses in any period would reduce Consolidated Net Income for such
period to less than zero;



     (4) any gain (or loss) realized upon the sale or other disposition of any asset of the Company
or its Consolidated Subsidiaries (including pursuant to any Sale and Leaseback Transaction) that is
not sold or otherwise disposed of in the ordinary course of business and any gain (or loss)
realized upon the sale or other disposition of any Capital Stock of any Person;



     (5) cash restructuring expenses in an amount not to exceed (A) the amount of actual cash
restructuring expenses for the fiscal year ended December 31, 2009, (B) $125.0 million for each of
the fiscal years ended December 31, 2010, 2011 and 2012, and (C) $50.0 million per fiscal year
thereafter, plus, in the case of each of (A), (B) and (C), to the extent that any amount permitted
to be included in a prior year pursuant to this clause (5) is not utilized, such unutilized amount
may be carried forward for use in only the next succeeding year;



     (6) any extraordinary gain or loss; and



     (7) the cumulative effect of a change in accounting principles.



     “Consolidated Total Assets” means the total Consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet of the Company.



10









 





     “Consolidated Total Debt” means, at any date of determination, the aggregate amount of all
outstanding Indebtedness of the Company and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP.



     “Consolidation” means, unless the context otherwise requires, the consolidation of (1) in the
case of the Company, the accounts of each of the Restricted Subsidiaries with those of the Company
and (2) in the case of a Restricted Subsidiary, the accounts of each Subsidiary of such Restricted
Subsidiary that is a Restricted Subsidiary with those of such Restricted Subsidiary, in each case
in accordance with GAAP consistently applied; provided, however, that “Consolidation” will not
include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the
Company or any Restricted Subsidiary in an Unrestricted Subsidiary will be accounted for as an
investment. The term “Consolidated” has a correlative meaning.



     “Continuing Director” means, as of any date of determination, any member of the Board of
Directors of the Company who:



     (1) was a member of such Board of Directors on the Issue Date; or



     (2) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.



     “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
the Base Indenture or in Section 11.02 hereof, or such other address as to which the Trustee may
give notice to the Company.



     “Credit Agreement” means, collectively, the Amended and Restated Credit Facilities, dated as
of October 23, 2009 by and among the Company, the several lenders from time to time party thereto,
Barclays Bank, PLC, as Documentation Agent and JPMorgan Chase Bank, N.A., as Administrative Agent
and Collateral Agent (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and restatement
thereof), supplemented, replaced, extended or otherwise modified from time to time.



     “Credit Facilities” means (1) the Credit Agreement and (2) one or more debt facilities,
indentures or other agreements refinancing, replacing, amending, restating or supplementing
(whether or not contemporaneously and whether or not related to the agreements specified above) or
otherwise restructuring or increasing the amount of available borrowings or other credit extensions
under (provided that such increase in the amount of available borrowings is permitted by Section
4.07 or making Restricted Subsidiaries of the Company a borrower, additional borrower or guarantor
under, all or any portion of the Indebtedness under such agreement or any successor, replacement or
supplemental agreement and whether including any additional obligors or with the same or any other
agent, lender or group of lenders or with other financial institutions or lenders.



     “Currency Agreement” means with respect to any Person any foreign exchange contract, currency
swap agreements or other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.



     “Custodian” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03(c) as Custodian with respect to the Notes, and any and
all successors thereto appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.



11









 





     “Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03(b) hereof as the Depositary with respect to the Notes,
and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provisions of this Indenture.



     “Designated Non-Cash Consideration” means non-cash consideration received by the Company or
one of its Restricted Subsidiaries in connection with an Asset Disposition that is designated by
the Company as Designated Non-Cash Consideration, less the amount of cash or cash equivalents
received in connection with a subsequent sale of such Designated Non-Cash Consideration, which cash
and cash equivalents shall be considered Net Available Cash received as of such date and shall be
applied pursuant to Section 4.08.



     “DIP Credit Agreement” means the Credit and Guarantee Agreement dated as of July 6, 2009 among
the Company and certain of its Subsidiaries, the lenders from time to time party thereto, JPMorgan
Chase Bank, N.A., as administrative agent, and the other parties thereto, as amended, supplemented
or otherwise modified prior to the date hereof.



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



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



     (2) is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital
Stock convertible or exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an Incurrence of
Indebtedness or Disqualified Stock, as applicable); or



     (3) is redeemable at the option of the holder thereof, in whole or in part;



     in the case of each of clauses (1), (2) and (3), on or prior to 180 days after the Stated
Maturity of the notes.



     “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States, any state of the United States or the District of Columbia.



     “EBITDA” for any period means the Consolidated Net Income for such period, plus, without
duplication, the following to the extent deducted in calculating such Consolidated Net Income:



     (1) income tax expense and state and local taxes of the Company and its Consolidated
Restricted Subsidiaries;



     (2) Consolidated Interest Expense;



     (3) depreciation expense of the Company and its Consolidated Restricted Subsidiaries;



     (4) amortization expense of the Company and its Consolidated Restricted Subsidiaries
(excluding amortization expense attributable to a prepaid cash item that was paid in a prior
period);



12









 





     (5) non-cash stock compensation expense and non-cash equity-linked expense;



     (6) fees, costs, charges, commissions and expenses or other charges incurred during such
period in connection with the DIP Credit Agreement, the Cases, the Plan of Reorganization and the
transactions contemplated by the foregoing, the termination or settlement of executory contracts,
professional and accounting costs fees and expenses, management incentive, employee retention or
similar plans (in each case to the extent such plan was approved by the Bankruptcy Court to the
extent required), litigation costs and settlements, asset write-downs, income and gains recorded in
connection with the corporate reorganization effected in connection with the winding up the debtors
party to the Plan of Reorganization prior to emergence;



     (7) any foreign exchange gains and losses;



     (8) non-cash charges relating to Statement of Financial Accounting Standards No. 106,
Employers’ Accounting for Postretirement Benefits Other Than Pensions;



     (9) any non-recurring fees, expenses or charges related to any equity offering, acquisition,
recapitalization or Incurrence of Indebtedness (including a refinancing thereof) (in each case,
whether or not successful), including any such fees, expenses, charges or change in control payment
related to the offering of the notes or other Indebtedness, and any amendment or other
modifications thereof, to the extent deducted in such period in computing Consolidated Net Income;
and



     (10) all other non-cash charges of the Company and its Consolidated Restricted Subsidiaries
(excluding any such non-cash charge to the extent it represents an accrual of or reserve for cash
expenditures in any future period) less all non-cash items of income of the Company and its
Consolidated Restricted Subsidiaries, in each case for such period (other than normal accruals in
the ordinary course of business).



     Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and
the depreciation and amortization and non-cash charges of, a Restricted Subsidiary of the Company
shall be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if (A) a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its shareholders or (B) in the case of any Foreign Subsidiary, the payment
of cash dividends or the making of cash distributions, in each case in a corresponding amount, by
such Foreign Subsidiary to the Company is not contractually restricted (as determined in good faith
by a Financial Officer of the Company), provided that to the extent cash of such Foreign Subsidiary
provided the basis for including the net income of such Foreign Subsidiary in Consolidated Net
Income pursuant to clause (3) of the definition of “Consolidated Net Income,” such cash shall not
be taken into account for the purposes of determining the amount of cash that is not contractually
restricted under this clause (B). Also, notwithstanding the foregoing, for purposes of calculating
EBITDA for each of the four fiscal quarter periods ending December 31, 2009, March 31, 2010 and
June 30, 2010, EBITDA for such four fiscal quarter periods shall equal EBITDA for the period
commencing on October 1, 2009 and ending on December 31, 2009, April 3, 2010 and July 3, 2010, as
applicable, multiplied by 4, 2 and 4/3, respectively.



     “Equity Offering” means a public or private offering of Capital Stock (other than Disqualified
Stock) of the Company.



13









 





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



     “Fair Market Value” means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction as such price is, unless specified otherwise in this Indenture, determined in good
faith by a Financial Officer of the Company or by the Board of Directors. Fair Market Value (other
than of any asset with a public trading market) of any asset or property (or group of assets or
property subject to an event giving rise to a requirement under this Indenture that “Fair Market
Value” be determined) in excess of $150.0 million shall be determined by the Board of Directors or
a duly authorized committee thereof.



     “Financial Officer” means the Chief Financial Officer, the Treasurer or the Chief Accounting
Officer of the Company.



     “Foreign Indebtedness” means Indebtedness Incurred by a Foreign Subsidiary.



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



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the Issue Date set forth in:



     (1) the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants,



     (2) statements and pronouncements of the Financial Accounting Standards Board,



     (3) such other statements by such other entities as approved by a significant segment of the
accounting profession, and



     (4) the rules and regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins
and similar written statements from the accounting staff of the SEC.



     All ratios and computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.



     “Global Note Legend” means the legend set forth in the form of Note attached hereto as
Exhibit A-1, with respect to the 2018 Notes, and Exhibit A-2, with respect to the
2020 Notes, which is required to be placed on all Global Notes issued under this Indenture.



     “Global Notes” means the global Notes in the form of Exhibit A-1 or Exhibit
A-2 hereto issued in accordance with Article 2 hereof.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness 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



14









 




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
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. The term “Guarantor” shall mean any Person Guaranteeing any obligation.




     “Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement or raw materials hedge agreement or any hedging
agreement entered into in connection with the issuance of convertible debt.



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



     “Incur” means issue, 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 Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed
to be Incurred by such Person at the time it becomes a Subsidiary. The term “Incurrence” when used
as a noun shall have a correlative meaning. The accretion of principal of a non-interest bearing
or other discount security shall not be deemed the Incurrence of Indebtedness.



     “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) all obligations of such Person for the reimbursement of any obligor on any letter of
credit, bank guarantee, bankers’ acceptance or similar credit transaction (other than obligations
with respect to letters of credit, bank guarantees, bankers’ acceptances or similar credit
transactions securing obligations (other than obligations described in clauses (1), (2) and (5))
entered into in the ordinary course of business of such Person to the extent such letters of
credit, bank guarantees, bankers’ acceptances or similar credit transactions are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day
following payment on the letter of credit, bank guarantee, bankers’ acceptance or similar credit
transaction);



     (4) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services (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 or the completion of
such services;



     (5) all Capitalized Lease Obligations and all Attributable Debt of such Person;



     (6) the amount 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 of such Person, any
Preferred Stock (but excluding, in each case, any accrued and unpaid dividends);



15









 





     (7) 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
Indebtedness of such Person 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) Hedging Obligations of such Person; and



     (9) all obligations of the type referred to in clauses (1) through (8) of other Persons for
the payment of which such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee.



     Notwithstanding the foregoing, in connection with the purchase by the Company or any
Restricted Subsidiary of any business, the term “Indebtedness” will exclude post-closing payment
adjustments to which the seller may become entitled to the extent such payment is determined by a
final closing balance sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is
paid within 30 days thereafter. In addition, the term “Indebtedness” will exclude obligations of
Chinese Subsidiaries in respect of Chinese Acceptance Notes in the ordinary course of business.



     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; provided, however, that in the case of
Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted
value thereof at such time.



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



     “Initial 2018 Notes” means $350,000,000 in aggregate principal amount of 2018 Notes issued
under this Indenture on the date hereof.



     “Initial 2020 Notes” means $350,000,000 in aggregate principal amount of 2020 Notes issued
under this Indenture on the date hereof.



     “Initial Notes” means the Initial 2018 Notes and the Initial 2020 Notes.



     “Interest Payment Dates” shall have the meaning set forth in paragraph 1 of the Notes.



     “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 to which such Person is party or of which it is
a beneficiary.



     “Investment” in any Person means any direct or indirect advance, loan or other extension of
credit (including by way of Guarantee or similar arrangement) 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.



16









 





     “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by Standard & Poor’s, or an equivalent rating by any other
Rating Agency.



     “Issue Date” means March 26, 2010.



     “Legal Holiday” means a Saturday, Sunday or other day on which the Trustee or banking
institutions are not required by law or regulation to be open in the State of New York or the State
of Illinois.



     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge in the
nature of an encumbrance of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).



     “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating business.



     “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 proceeds from the sale or other disposition of any securities received
as consideration, in each case 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 legal, accounting, investment banking, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a consequence of such Asset
Disposition;



     (2) all payments made on any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind
with respect to such assets, or which 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) 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



     (4) 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 Restricted Subsidiary after such Asset Disposition
(but only for so long as such reserve is maintained).



     “Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means 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 actually incurred in connection with such issuance or sale and net of taxes paid or payable as
a result thereof.



     “Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary of the Company.
“Officer” of a Subsidiary Guarantor has a correlative meaning.



     “Officers’ Certificate” means a certificate signed by two Officers.



17









 





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



     “Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.



     “Permitted Business” means any business engaged in by the Company or any Restricted Subsidiary
on the Issue Date and any Related Business.



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



     (1) Liens to secure Indebtedness permitted pursuant to Section 4.07(b)(1);



     (2) pledges or deposits by such Person under workers’ compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids, tenders,
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 duties or for the payment of rent, in each case
Incurred in the ordinary course of business;



     (3) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case
for sums not yet due or being contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to which such Person shall then
be proceeding with an appeal or other proceedings for review;



     (4) Liens for taxes, assessments or other governmental charges not yet due or payable or
subject to penalties for non-payment or which are being contested in good faith by appropriate
proceedings;



     (5) Liens in favor of issuers of surety or performance bonds or letters of credit, bank
guarantees, bankers’ acceptances or similar credit transactions issued pursuant to the request of
and for the account of such Person in the ordinary course of its business; provided, however, that
such letters of credit, bank guarantees, bankers’ acceptances and similar credit transactions do
not constitute Indebtedness;



     (6) survey exceptions, encumbrances, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties which were not
Incurred in connection with Indebtedness for borrowed money and which do not in the aggregate
materially adversely affect the value of said properties or materially impair their use in the
operation of the business of such Person;



     (7) Liens securing Indebtedness Incurred to finance the construction, purchase or lease of, or
repairs, improvements or additions to, property of such Person (including Indebtedness Incurred
under Section 4.07(b)(6); provided, however, that the Lien may not extend to any other property
(other than property related to the property being financed) owned by such Person or any of its
Subsidiaries at the time the Lien is Incurred, and the Indebtedness (other than any interest
thereon) secured by the Lien may not be Incurred more than 180 days after the later of the
acquisition, completion of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien;



18









 





     (8) Liens existing on the Issue Date (other than Liens referred to in the foregoing clause
(1)) and extensions, renewals and replacements of any such Liens so long as the principal amount of
Indebtedness or other obligations secured thereby is not increased and so long as such Liens are
not extended to any other property of the Company or any of its Subsidiaries;



     (9) Liens on property or shares of stock of another Person at the time such other Person
becomes a Subsidiary of such Person; provided, however, that such Liens are not created, Incurred
or assumed in connection with, or in contemplation of, such other Person becoming such a
Subsidiary; provided further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries, except pursuant to after acquired property clauses existing
in the applicable agreements at the time such Person becomes a Subsidiary which do not extend to
property transferred to such Person by the Company or a Restricted Subsidiary;



     (10) Liens on property at the time such Person or any of its Subsidiaries acquires the
property, including any acquisition by means of a merger or consolidation with or into such Person
or any Subsidiary of such Person; provided, however, that such Liens are not created, Incurred or
assumed in connection with, or in contemplation of, such acquisition; provided further, however,
that the Liens do not extend to any other property owned by such Person or any of its Subsidiaries;



     (11) Liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to
such Person or a Restricted Subsidiary of such Person;



     (12) Liens securing Hedging Obligations so long as such Hedging Obligations are permitted to
be Incurred hereunder;



     (13) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of
any Indebtedness secured by any Lien referred to in the foregoing clauses (7), (8), (9) and (10);
provided, however, that:




     (A) such new Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements, accessions, proceeds, dividends or distributions in
respect thereof) and




     (B) the Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of:




     (i) the outstanding principal amount or, if greater, committed amount of the
indebtedness secured by Liens described under clauses (7), (8), (9) or (10) at the
time the original Lien became a Permitted Lien hereunder; and




     (ii) an amount necessary to pay any fees and expenses, including premiums,
related to such Refinancings;



     (14) Liens on accounts receivables and related assets of the type specified in the definition
of “Qualified Receivables Transaction” Incurred in connection with a Qualified Receivables
Transaction;



     (15) judgment Liens not giving rise to an Event of Default;



     (16) Liens arising from Uniform Commercial Code financing statement filings regarding leases
that do not otherwise constitute Indebtedness entered into in the ordinary course of business;



19









 





     (17) leases and subleases of real property which do not materially interfere with the ordinary
conduct of the business of the Company and its Subsidiaries;



     (18) Liens which constitute bankers’ Liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with any bank or other financial institution,
whether arising by operation of law or pursuant to contract;



     (19) 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;



     (20) Liens on specific items of inventory or other goods and related documentation (and
proceeds thereof) securing reimbursement obligations in respect of trade letters of credit issued
to ensure payment of the purchase price for such items of inventory or other goods; and



     (21) Liens on assets of Foreign Subsidiaries securing Indebtedness of a Foreign Subsidiary
permitted by Section 4.07(b)(13) and securing other obligations under the agreements governing or
relating to such Indebtedness, so long as such Liens do not encumber the Capital Stock of the
Company or any of its Subsidiaries;



     (22) pledges or deposits made to support any obligations of the Company or any Restricted
Subsidiary (including cash collateral to secure obligations under letters of credit) so long as the
aggregate amount of such pledges and deposits does not exceed $350.0 million;



     (23) other Liens to secure Indebtedness as long as the amount of outstanding Indebtedness
secured by Liens Incurred pursuant to this clause (23) does not exceed 15% of Consolidated Total
Assets of the Company, as determined based on the consolidated balance sheet of the Company as of
the end of the most recent fiscal quarter for which financial statements are available; provided,
however, notwithstanding whether this clause (23) would otherwise be available to secure
Indebtedness, Liens securing Indebtedness originally secured pursuant to this clause (23) may
secure Refinancing Indebtedness in respect of such Indebtedness and such Refinancing Indebtedness
shall be deemed to have been secured pursuant to this clause (23).



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



     “Plan of Reorganization” means the First Amended Joint Plan of Reorganization Under Chapter 11
of the Bankruptcy Code of the Company and certain of its Subsidiaries dated September 18, 2009 (as
in effect on the date of confirmation thereof and as thereafter may be amended).



     “Preferred Stock”, as applied to the Capital Stock of any Person, means 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.



     “principal” of a note means the principal of the note plus the premium, if any, payable on the
note which is due or overdue or is to become due at the relevant time.



     “Purchase
Money Indebtedness” means Indebtedness:




20











 





     (1) consisting of the purchase price of property, plant or equipment whether through the
direct purchase of such assets or the Capital Stock of any Person owning such assets, conditional
sale obligations, obligations under any title retention agreement and other obligations Incurred in
connection with the acquisition, construction or improvement of such asset, in each case where the
amount of such Indebtedness does not exceed the greater of



          (A) the cost of the asset being financed and




          (B) the Fair Market Value of such asset; and




     (2) Incurred to finance such acquisition, construction or improvement by the Company or a
Restricted Subsidiary of such asset whether through the direct purchase of such asset or the
Capital Stock of any Person owning such asset;


provided, however, that such Indebtedness is Incurred within 180 days after such acquisition or the
completion of such acquisition, construction or improvement.




     “Purchase Money Note” means a promissory note of a Receivables Entity evidencing a line of
credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a
Receivables Entity in connection with a Qualified Receivables Transaction, which note:



     (1) shall be repaid from cash available to the Receivables Entity, other than




     (A) amounts required to be established as reserves;




     (B) amounts paid to investors in respect of interest;




     (C) principal and other amounts owing to such investors; and




     (D) amounts paid in connection with the purchase of newly generated receivables and



     (2) may be subordinated to the payments described in clause (1).



     “Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of
its Subsidiaries may sell, convey or otherwise transfer to:



     (1) a Receivables Entity (in the case of a transfer by the Company or any of its Subsidiaries)
or



     (2) any other Person (in the case of a transfer by a Receivables Entity),


or may grant a security interest in, any accounts receivable (whether now existing or arising in
the future) of the Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all contracts and all
Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
accounts receivable; provided, however, that the financing terms, covenants, termination events and
other provisions thereof shall be market terms (as determined in good faith by a Financial Officer
of the Company).







21









 








     The grant of a security interest in any accounts receivable of the Company or any of its
Restricted Subsidiaries to secure Indebtedness under Credit Facilities shall not be deemed a
Qualified Receivables Transaction.



     “Quotation Agent” means one of the Reference Treasury Dealers selected by the Company.



     “Rating Agency” means Standard & Poor’s and Moody’s or, if Standard & Poor’s or Moody’s 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) which shall be substituted for Standard & Poor’s or Moody’s
or both, as the case may be.



     “Receivables Entity” means (a) a Wholly Owned Subsidiary of the Company which is designated by
the Board of Directors (as provided below) as a Receivables Entity or (b) another Person engaging
in a Qualified Receivables Transaction with the Company which Person engages in the business of the
financing of accounts receivable, and in either of clause (a) or (b):



     (1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which




     (A) is Guaranteed by the Company or any Subsidiary of the Company (excluding Guarantees
of obligations (other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings);




     (B) is recourse to or obligates the Company or any Subsidiary of the Company in any way
other than pursuant to Standard Securitization Undertakings; or




     (C) subjects any property or asset of the Company or any Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings;



     (2) which is not an Affiliate of the Company or with which neither the Company nor any
Subsidiary of the Company has any material contract, agreement, arrangement or understanding other
than on terms which the Company reasonably believes to be no less favorable to the Company or such
Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of
the Company; and



     (3) to which neither the Company nor any Subsidiary of the Company has any obligation to
maintain or preserve such entity’s financial condition or cause such entity to achieve certain
levels of operating results.



     Any such designation by the Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.



     “Reference Treasury Dealer” means Citigroup Global Markets Inc. and its successors and assigns
and two other nationally recognized investment banking firms selected by the Company that are
primary U.S. Government securities dealers.



     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Company, of the bid and asked prices for
the



22









 




Comparable Treasury Issue, expressed in each case as a percentage of its principal amount,
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day immediately preceding such redemption date.




     “Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for,
such Indebtedness, including, in any such case from time to time, after the discharge of the
Indebtedness being Refinanced. “Refinanced” and “Refinancing” shall have correlative meanings.



     “Refinancing Indebtedness” means Indebtedness that is Incurred to Refinance (including
pursuant to any defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Issue Date or Incurred in compliance with this Indenture
(including Indebtedness of the Company that Refinances Refinancing Indebtedness); provided,
however, that:



     (1) the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of
the Indebtedness being Refinanced,



     (2) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness
is Incurred that is equal to or greater than the remaining Average Life of the Indebtedness being
refinanced,



     (3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) that is equal to or less than the aggregate
principal amount of the Indebtedness being refinanced (or if issued with original issue discount,
the aggregate accreted value) then outstanding (or that would be outstanding if the entire
committed amount of any credit facility being Refinanced were fully drawn (other than any such
amount that would have been prohibited from being drawn pursuant to Section 4.07)) (plus fees and
expenses, including any premium and defeasance costs), and



     (4) if the Indebtedness being Refinanced is subordinated in right of payment to the notes,
such Refinancing Indebtedness is subordinated in right of payment to the notes at least to the same
extent as the Indebtedness being Refinanced; provided further, however, that Refinancing
Indebtedness shall not include:




     (A) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that
Refinances Indebtedness of the Company; or




     (B) Indebtedness of the Company or a Restricted Subsidiary that Refinances Indebtedness
of an Unrestricted Subsidiary.



     “Regular Record Date” for the interest payable on any Interest Payment Date means the
applicable date specified as a “Record Date” on the face of the Note.



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



     “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.



     “Sale and Leaseback Transaction” means an arrangement relating to property, plant or equipment
now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the



23









 




Company or a Restricted Subsidiary transfers such property to a Person and the Company or such
Restricted Subsidiary leases it from such Person, other than (i) leases between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries or (ii) any such transaction entered into
with respect to any property, plant or equipment or any improvements thereto at the time of, or
within 180 days after, the acquisition or completion of construction of such property, plant or
equipment or such improvements (or, if later, the commencement of commercial operation of any such
property, plant or equipment), as the case may be, to finance the cost of such property, plant or
equipment or such improvements, as the case may be.




     “SEC” means the U.S. Securities and Exchange Commission.



     “Secured Indebtedness” means any Indebtedness of the Company secured by a Lien. “Secured
Indebtedness” of a Subsidiary has a correlative meaning.



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



     “Senior Indebtedness” of the Company or any Subsidiary Guarantor, as the case may be, means
the principal of, premium (if any) and accrued and unpaid interest on (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization of the Company or any
Subsidiary Guarantor, as applicable, regardless of whether or not a claim for post-filing interest
is allowed in such proceedings), and fees and other amounts owing in respect of, Indebtedness under
Credit Facilities, the notes (in the case of the Company), the Subsidiary Guarantees (in the case
of the Subsidiary Guarantors) and all other indebtedness of the Company or any Subsidiary
Guarantor, as applicable, whether outstanding on the Issue Date or thereafter Incurred, unless in
the instrument creating or evidencing the same or pursuant to which the same is outstanding it is
provided that such obligations are subordinated in right of payment to the notes or such Subsidiary
Guarantor’s Subsidiary Guarantee, as applicable; provided, however, that Senior Indebtedness of the
Company or any Subsidiary Guarantor shall not include:



     (1) any obligation of the Company to any Subsidiary of the Company or of such Subsidiary
Guarantor to the Company or any other Subsidiary of the Company;



     (2) any liability for Federal, state, local or other taxes owed or owing by the Company or
such Subsidiary Guarantor, as applicable;



     (3) any accounts payable or other liability to trade creditors arising in the ordinary course
of business (including Guarantees thereof or instruments evidencing such liabilities);



     (4) any Indebtedness or obligation of the Company (and any accrued and unpaid interest in
respect thereof) that by its terms is subordinate or junior in right of payment to any other
Indebtedness or obligation of the Company or such Subsidiary Guarantor, as applicable, including
any Subordinated Obligations of the Company or such Subsidiary Guarantor, as applicable;



     (5) any obligations with respect to any Capital Stock; or



     (6) any Indebtedness Incurred in violation of this Indenture.



     “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.



24









 





     “Standard & Poor’s” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating business.



     “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which, taken as a whole,
are customary in an accounts receivable transaction.



     “Stated Maturity” means, with respect to any security, the date specified in 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 redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred). “Subordinated
Obligation” means any Indebtedness of the Company (whether outstanding on the Issue Date or
thereafter Incurred) that by its terms is subordinate or junior in right of payment to the notes.
“Subordinated Obligation” of a Subsidiary Guarantor has a correlative meaning.



     “Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is 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.



     The term “Subsidiary” also shall include any corporation, limited liability company,
partnership or other entity that: (1) under GAAP may be consolidated with the Company for
financial reporting purposes; and (2) has been designated as a Subsidiary of the Company by the
Board of Directors of the Company for so long as such designation remains in effect.



     “Subsidiary Guarantee” means each Guarantee of the obligations with respect to the notes
issued by a Subsidiary of the Company pursuant to the terms of this Indenture.



     “Subsidiary Guarantor” means any Subsidiary that has issued a Subsidiary Guarantee.



     “Temporary Cash Investments” means any of the following:



     (1) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;



     (2) investments in commercial paper maturing within 270 days from the date of acquisition
thereof, and having, at such date of acquisition, ratings of A1 from Standard & Poor’s and P1 from
Moody’s;



     (3) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof and issued or guaranteed by or placed with,
and



25









 




money market deposit accounts issued or offered by any commercial bank organized under the
laws of the United States of America or any state thereof which has a short-term deposit rating of
A1 from Standard & Poor’s and P1 from Moody’s and has a combined capital and surplus and undivided
profits of not less than $500 million;




     (4) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (1) above and entered into with a financial institution described in
clause (3) above;



     (5) money market funds that




     (A) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company
Act of 1940,




     (B) are rated AAA by Standard & Poor’s and Aaa by Moody’s and




     (C) have portfolio assets of at least $5.0 billion; and



     (6) in the case of any Foreign Subsidiary,




     (A) marketable direct obligations issued or unconditionally guaranteed by the sovereign
nation in which such Foreign Subsidiary is organized and is conducting business or issued by
any agency of such sovereign nation and backed by the full faith and credit of such
sovereign nation, in each case maturing within one year from the date of acquisition, so
long as the indebtedness of such sovereign nation is rated at least A by Standard & Poor’s
or A2 by Moody’s or carries an equivalent rating from a comparable foreign rating agency,




     (B) investments of the type and maturity described in clauses (2) through (5) of
foreign obligors, which investments or obligors have ratings described in such clauses or
equivalent ratings from comparable foreign rating agencies,




     (C) investments of the type and maturity described in clause (3) in any obligor
organized under the laws of a jurisdiction other than the United States that (i) is a branch
or subsidiary of a lender or the ultimate parent company of a lender under any Credit
Facilities (but only if such lender meets the ratings and capital, surplus and undivided
profits requirements of such clause (3)) or (ii) carries a rating at least equivalent to the
rating of the sovereign nation in which it is located, and




     (D) other investments of the type and maturity described in clause (3) in obligors
organized under the laws of a jurisdiction other than the United States in any country in
which such Subsidiary is located; provided that the investments permitted under this
subclause (D) shall be made in amounts and jurisdictions consistent with the Company’s
policies governing short-term investments.



     “Total Leverage Ratio” means, as of the date of determination, the ratio of (a) Consolidated
Total Debt to (b) EBITDA for the most recently ended four fiscal quarter period ending immediately
prior to the date for which financial statements are internally available; provided, however, that:



     (A) if the Company or any Restricted Subsidiary 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 calculation of the Total Leverage Ratio is an Incurrence of
Indebtedness, then the



26









 




calculation of EBITDA and Consolidated Total Debt for purposes of this definition for such
period shall give effect on a pro forma basis to such new Indebtedness as if such Indebtedness had
been Incurred on the first day of such period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period;




     (B) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than Indebtedness
Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction giving rise to the calculation of the
Total Leverage Ratio, then the calculation of EBITDA and Consolidated Total Debt for purposes of
this definition for such period shall give effect on a pro forma basis to such repayment,
repurchase, defeasance or discharge as if it had occurred on the first day of such period and as if
the Company or such Restricted Subsidiary had not earned the interest income, if any, actually
earned during such period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;



     (C) if since the beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, then EBITDA for such period shall be reduced by an amount equal to the
EBITDA (if positive) directly attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the EBITDA (if negative) directly
attributable thereto for such period;



     (D) if since the beginning of such period the Company or any Restricted Subsidiary (by merger
or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person that
becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets
occurring in connection with a transaction giving rise to a calculation hereunder, which
constitutes all or substantially all of an operating unit, division or line of a business, then
EBITDA for such period shall be calculated after giving pro forma effect to such Investment or
acquisition (including the Incurrence of any Indebtedness) as if it occurred on the first day of
such period; and



     (E) 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 Restricted Subsidiary since the beginning
of such period shall have made any Asset Disposition or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (C) or (D) above if made by the Company
or a Restricted Subsidiary during such period, then EBITDA for such period shall be calculated
after giving pro forma effect to such Asset Disposition, Investment or acquisition of assets as if
it occurred on the first day of such period.



     For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, Asset Disposition or other Investment, the amount of income, EBITDA or earnings relating
thereto, the pro forma calculations shall be determined in good faith by a responsible Financial
Officer of the Company; provided that any pro forma adjustments shall be limited to those that are
(a) reasonably identifiable and factually supportable and (b) have occurred or are reasonably
expected to occur in the next twelve months following the date of such calculation, in the
reasonable judgment of a responsible Financial Officer of the Company.



     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
as at the



27









 




date of determination in excess of 12 months). If any Indebtedness is Incurred or repaid
under a revolving credit facility and is being given pro forma effect, the interest on such
Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the
four fiscal quarters subject to the pro forma calculation.




     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
Issue Date.



     “Trade Payables” means, with respect to any Person, any accounts payable or any indebtedness
or monetary obligation 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.



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



     “Trust Officer” means the Chairman of the Board, the President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.



     “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 in the manner provided below; and



     (2) any Subsidiary of an Unrestricted Subsidiary.



     The Board of Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided, however ̧ that (i) the Subsidiary to be
so designated has total Consolidated assets of $1,000 or less; (ii) at the time of such
designation, the Company could have made a Restricted Payment under Section 4.05(a)(C) or Section
4.05(b)(10) in an amount equal to the lesser of (A) the Company’s Investment in such Restricted
Subsidiary and (B) the Fair Market Value of the net assets of such Restricted Subsidiary, in each
case at the time of such designation; or (iii) such Subsidiary is a Foreign Subsidiary that is a
joint venture or similar entity.



     The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation:



     (x) (1) the Company could Incur $1.00 of additional Indebtedness under Section 4.07(a) or (2)
the Consolidated Interest Coverage Ratio for the Company and its Restricted Subsidiaries would be
the same or greater after giving effect to such designation than before such designation; and



     (y) no Default shall have occurred and be continuing.



     Any such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by
the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy
of the resolution of the Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.



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     “U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination.



     “U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuer’s option.



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



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



SECTION 1.03. Other Definitions.




	 	 	 
	Term	 	Defined in Section
	Acceleration Notice
	 	6.02
	Affiliate Transaction
	 	4.09(a)
	Asset Sale Offer
	 	4.08
	Authentication Order
	 	2.02(d)
	Change of Control Offer
	 	4.11(a)
	Change of Control Payment Date
	 	4.11(a)
	Company
	 	Preamble
	Covenant Defeasance
	 	8.03
	DTC
	 	2.03(b)
	Events of Default
	 	6.01
	Guaranteed Obligations
	 	10.01
	Initial Lien
	 	4.10
	Legal Defeasance
	 	8.02
	Material Capital Markets Indebtedness
	 	4.13
	Material Indebtedness
	 	4.13
	Notes
	 	Preamble
	Paying Agent
	 	2.03(a)
	Redemption Date
	 	2.08(d)
	Registrar
	 	2.03(a)
	Restricted Payment
	 	4.05(a)
	Reversion Date
	 	4.15(a)
	Surviving Company
	 	5.01(a)(1)
	Surviving Guarantor
	 	5.01(b)(1)
	Suspended Covenants
	 	4.15(a)
	Suspension Date
	 	4.15(a)
	Suspension Period
	 	4.15(a)
	Trustee
	 	Preamble






29









 






SECTION 1.04. Incorporation by Reference of Trust Indenture Act.




     (a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.



     (b) The following TIA terms used in this Indenture have the following meanings:



     “indenture securities” means the Notes and the Subsidiary Guarantees;



     “indenture security holder” means a Holder;



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and



     “obligor” on the Notes means the Company and any successor obligor upon the Notes.



     (c) All other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein
have the meanings so assigned to them either in the TIA, by another statute or SEC rule, as
applicable.



SECTION 1.05. Rules of Construction.




     (a) Unless the context otherwise requires:



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



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



     (iii) “or” is not exclusive;



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



     (v) all references in this instrument to “Articles,” “Sections” and other subdivisions are to
the designated Articles, Sections and subdivisions of this instrument as originally executed;



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



     (vii) “including” means “including without limitation;”



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



     (ix) references to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or rules adopted by the
SEC from time to time thereunder.



ARTICLE 2

THE NOTES






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     Pursuant to Section 201 of the Base Indenture, the provisions of this Article 2 establish the
form of the Notes under this First Supplemental Indenture, and to the extent that any provisions of
this Article 2 are duplicative, or in contradiction with, the Base Indenture, the provisions of
this Article 2 shall govern the Notes.



     SECTION 2.01. Form and Dating.



     (a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A-1 hereto with respect to the 2018 Notes and in the
form of Exhibit A-2 with respect to the 2020 Notes, each of which is hereby incorporated in
and expressly made part of this Indenture. 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-1
and Exhibit A-2. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $2,000 and integral multiples of $1,000 thereafter. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture
and the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.



     (b) Book-Entry Provisions. This Section 2.01(b) shall only apply to Global Notes
deposited with the Trustee, as custodian for the Depositary. Participants and Indirect Participants
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 for the Depositary or under such Global Note, and
the Depositary shall be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants or Indirect Participants,
the Applicable Procedures or 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.



     (c) Certificated Notes. Except as otherwise provided herein, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes.
For greater certainty, the provisions of this Section 2.01(c) are subject to the requirements
relating to notations, legends or endorsements on Notes required by law, stock exchange rule, or
agreements to which any the Company is subject, if any.



SECTION 2.02. Execution and Authentication.




     (a) One Officer shall sign the Notes for the Company by manual or facsimile signature.



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



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



     (d) The Trustee shall, upon a written order of the Company signed by one Officer (an
“Authentication Order”), authenticate Notes for original issue.



31









 





     (e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Company or any of their respective Subsidiaries.



SECTION 2.03. Registrar and Paying Agent.




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



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



     (c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes, and the Trustee hereby initially agrees so to
act.



SECTION 2.04. Paying Agent to Hold Money in Trust.




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



SECTION 2.05. 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 all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date or such shorter time as the Trustee
may allow, as the Trustee may reasonably require of the names and addresses of the Holders, and the
Company shall otherwise comply with TIA Section 312(a).



32









 





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



     SECTION 2.06. Transfer and Exchange.



     (a) Transfer and Exchange of Certificated Notes. When Certificated Notes are
presented to the Registrar with a request:




     (1) to register the transfer of such Certificated Notes; or




     (2) to exchange such Certificated Notes for an equal principal amount of Certificated
Notes of other authorized denominations,


the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Certificated Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing;




     (b) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global
Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note
except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a
Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with written instructions directing the Trustee to make, or
to direct the Custodian to make, an adjustment on its books and records with respect to such Global
Note to reflect an increase in the aggregate principal amount of the Notes represented by the
Global Note, then the Trustee shall cancel such Certificated Note and cause, or direct the
Custodian to cause, in accordance with the standing instructions and procedures existing between
the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global
Note to be increased accordingly. If no Global Notes are then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’
Certificate from the Company, a new Global Note in the appropriate principal amount.



     (c) Transfer and Exchange of Global Notes. The transfer and exchange of Global Notes
or beneficial interests therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depositary therefor.



     (d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding any other
provisions of this Indenture (other than the provisions set forth in subsection (e) of this Section
2.06), a Global Note may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.



     (e) Authentication in Absence of Depositary. If at any time:




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



33









 






     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Certificated Notes and delivers a written notice to
such effect to the Trustee; or




     (3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes and beneficial owners holding interests representing an aggregate principal amount
of at least 51% of such Notes represented by Global Notes advise the Trustee in writing that
the continuation of a book-entry system through the Depositary is no longer in such owner’s
best interests.


then the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate requesting
the authentication and delivery of Certificated Notes to the Persons designated by the Company,
will authenticate and deliver Certificated Notes, in an aggregate principal amount equal to the
principal amount of Global Notes, in exchange for such Global Notes.




     (f) Cancellation and/or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for Certificated Notes, redeemed, repurchased
or canceled, such Global Note shall be returned to the Depositary 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 Certificated Notes, 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 books and records of the Trustee (if it is then the Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Custodian, to reflect such reduction.



     (g) Obligations with Respect to Transfers and Exchanges of Notes.




     (1) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Certificated Notes and Global Notes at the Registrar’s
request.




     (2) No service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith.




     (3) The Registrar shall not be required to register the transfer of or exchange of (a)
any Note selected for redemption in whole or in part pursuant to Article 3, except the
unredeemed portion of any Note being redeemed in part, or (b) any Note for a period
beginning 15 Business Days before the mailing of a notice of an offer to repurchase or
redeem Notes or 15 Business Days before an Interest Payment Date (whether or not an Interest
Payment Date or other date determined for the payment of interest), and ending on such
mailing date or Interest Payment Date, as the case may be.




     (4) Prior to the due presentation for registration of transfer of any Note, the
Company, 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 and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent or the Registrar shall be affected by notice to the contrary.




     (5) 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.



34









 





     (h) No Obligation of the Trustee.




     (1) 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 (including any notice of redemption) or the payment of any amount, 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 under 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 in global form 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.




     (2) 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 without
limitation 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.



SECTION 2.07. Replacement Notes.




     If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.



     In case any such mutilated, destroyed, lost or stolen Note had become or is about to become
due and payable, the Company, in its discretion, may, instead of issuing a new Note, pay such Note,
upon satisfaction of the conditions set forth in the preceding paragraph.



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



     The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies of any Holder with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Note.



SECTION 2.08. Outstanding Notes.




     (a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section



35









 




2.08 as not outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the
Company shall not be deemed to be outstanding for purposes of Section 2.08(b) hereof.




     (b) If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced note is held by a bona fide
purchaser.



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



     (d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
segregates and holds in trust, in accordance with this Indenture, on a date of redemption (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 payable on that date, then on and after
that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.



SECTION 2.09. Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, amendment, supplement, waiver or consent, Notes owned by the Company, or by any
Affiliate of the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
amendment, supplement, waiver or consent, only Notes that the Trustee knows are so owned shall be
so disregarded.



SECTION 2.10. Temporary Notes.




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



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



SECTION 2.11. Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent, upon direction by the Company and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
such cancelled Notes in accordance with its customary procedures (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all cancelled Notes shall be
delivered to the Company from time to time upon written request. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.



SECTION 2.12. CUSIP or ISIN Numbers.




     The Company in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a



36









 




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




SECTION 2.13. Additional Notes.




     The Company shall be entitled, subject to its compliance with Section 4.07 hereof, to issue
Additional 2018 Notes and Additional 2020 Notes under this Indenture in an unlimited aggregate
principal amount, each of which shall have identical terms as the Initial 2018 Notes and Initial
2020 Notes, respectively, other than with respect to the date of issuance and issue price and first
payment of interest. The Initial 2018 Notes and Initial 2020 Notes, respectively, and any
Additional 2018 Notes and Additional 2020 Notes shall be treated as a single class for all purposes
under this Indenture, including without limitation, waivers, amendments, redemptions and offers to
purchase.



     With respect to any Additional Notes, the Company shall set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:



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



     (b) the issue price, the issue date and the CUSIP number(s) of such Additional Notes;
provided, however, that no Additional Notes may be issued at a price that would cause such
Additional Notes to have “original issue discount” within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended.



ARTICLE 3

REDEMPTION AND PREPAYMENT




     To the extent that any provisions of this Article 3 are duplicative or conflict with any
provision of the Base Indenture, this Article 3 shall govern and be controlling solely with respect
to the Notes.



SECTION 3.01. Notices to Trustee.




     If the Company elects to redeem any series of Notes pursuant to the optional redemption
provisions of Sections 3.07 and 3.08 hereof and paragraph 5 of the Notes, it shall furnish to the
Trustee an Officers’ Certificate setting forth (i) the Section of this Indenture pursuant to which
the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of 2018 Notes or
2020 Notes, as applicable, to be redeemed, and (iv) the redemption price. If the Company elects to
redeem any series of Notes pursuant to the provisions of Sections 3.07 and 3.08 hereof and
paragraph 5 of the Notes, it shall furnish such Officers’ Certificate to the Trustee at least 30
days but not more than 60 days before a Redemption Date unless a shorter notice shall be reasonably
satisfactory to the Trustee. Each Officers’ Certificate shall be accompanied by an Opinion of
Counsel from the Company to the effect that such redemption will comply with the conditions herein.
Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall, therefore, be void and of no effect.



SECTION 3.02. Selection of Notes to be Redeemed.







37









 








     If less than all of the Notes of any series are to be redeemed or purchased at any time, the
Trustee shall select the Notes or such series to be redeemed or purchased, (i) if the applicable
Notes are listed, in compliance with the requirements of the principal national securities exchange
on which the applicable Notes are listed, or (ii) if the applicable Notes are not so listed, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion shall deem to be
fair and appropriate. In the event of partial redemption, the particular Notes to be redeemed shall
be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the
Redemption Date by the Trustee from the outstanding Notes not previously called for redemption.



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



SECTION 3.03. Notice of Redemption.




     At least 30 days but not more than 60 days before a Redemption Date, the Company 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.



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



     (a) the Redemption Date;



     (b) the redemption price;



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



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



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



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



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



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



     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense, provided, however, that the Company gives the Trustee at least 3 Business
Days



38









 




prior notice of such request. Any redemption and notice thereof may, in the Company’s
discretion, be subject to the satisfaction of one or more conditions precedent.




SECTION 3.04. Effect of Notice Upon Redemption.




     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price stated
in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued interest to the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on the related Interest
Payment Date). Failure to give notice or any defect in the notice to any Holder shall not affect
the validity of the notice to any other Holder.



SECTION 3.05. Deposit of Redemption Price.




     On or before 11:00 a.m. Eastern Time on any Redemption Date, the Company shall deposit with
the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Notes (or portions of Notes) to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.



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



SECTION 3.06. Notes Redeemed in Part.




     Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the
Company’s written request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.



SECTION 3.07. Optional Redemption for the 2018 Notes.




     Except as set forth in subparagraphs (a), (b) and (d) below, the 2018 Notes are not redeemable
before March 15, 2014.



     (a) At any time prior to March 15, 2014, the Company may, at its option, redeem all or part of
the Notes (which includes Additional 2018 Notes, if any), at a redemption price equal to 100% of
the principal amount of 2018 Notes redeemed plus the Applicable Premium for the 2018 Notes, as of,
and accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the
rights of Holders on the relevant record date to receive interest due on the relevant Interest
Payment Date).




39











 





     (b) At any time prior to March 15, 2014, during any 12-month period commencing on the
Issue Date, the Company may, at its option, redeem up to 10% of the aggregate principal amount of
the 2018 Notes issued under this Indenture (calculated giving effect to any issuance of Additional
2018 Notes) at a redemption price equal to 103.000% of the principal amount thereof, plus accrued
and unpaid interest 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 March 15, 2014, the Company may, at its option, redeem all or a part of the
2018 Notes, at the redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest, if any, thereon to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on March 15 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	103.938	%
	2015
	 	 	101.969	%
	2016 and thereafter
	 	 	100.000	%






     (d) Notwithstanding the provisions of subparagraphs (a), (b) and (c) of this Section 3.07, at
any time prior to March 15, 2013, the Company may, at its option, on one or more occasions redeem
up to 35% of the aggregate principal amount of 2018 Notes issued under this Indenture (which
includes the Additional 2018 Notes, if any) at a redemption price of 107.875% of the principal
amount thereof, plus accrued and unpaid interest, if any, to, but not including, 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), with the Net Cash Proceeds of one or more Equity Offerings;
provided that:




     (1) at least 65% of the original aggregate principal amount of the 2018 Notes issued
under this Indenture (calculated after giving effect to any issuance of Additional 2018
Notes) remains outstanding immediately after giving effect to such redemption; and




     (2) any such redemption by the Company must be made within 90 days after the closing of
such Equity Offering.



     (e) Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.



SECTION 3.08. Optional Redemption for the 2020 Notes.




     Except as set forth in subparagraphs (a), (b) and (d) below, the 2020 Notes are not redeemable
before March 15, 2015.



     (a) At any time prior to March 15, 2015, the Company may, at its option, redeem the 2020 Notes
(which includes Additional 2020 Notes, if any), in whole or in part, at a redemption price equal
to 100% of the principal amount of the 2020 Notes redeemed plus the Applicable Premium for the 2020
Notes, as of, and accrued and unpaid interest, if any, to, but not including, the Redemption Date
(subject to the rights of Holders of Notes on the relevant record date to receive interest due on
the relevant Interest Payment Date).



     (b) At any time prior to March 15, 2015, during any 12-month period commencing on the Issue
Date, the Company may, at its option, redeem up to 10% of the aggregate principal amount of the
2020 Notes issued under this Indenture (calculated giving effect to any issuance of Additional 2020
Notes) at a redemption price equal to 103.000% of the principal amount thereof, plus accrued and
unpaid



40









 




interest 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 March 15, 2015, the Company may, at its option, redeem all or a part of the
2020 Notes, at the redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest, if any, thereon to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on March 15 of the years indicated below:



	 	 	 	 	 
	Year	 	Percentage
	2015
	 	 	104.063	%
	2016
	 	 	102.708	%
	2017
	 	 	101.354	%
	2018 and thereafter
	 	 	100.000	%






     (d) Notwithstanding the provisions of subparagraphs (a), (b) and (c) of this Section 3.08, at
any time prior to March 15, 2013, the Company may, at its option, on one or more occasions redeem
up to 35% of the aggregate principal amount of 2020 Notes issued under this Indenture (which
includes the Additional 2020 Notes, if any) at a redemption price of 108.125% of the principal
amount thereof, plus accrued and unpaid interest, if any, to, but not including, 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), with the Net Cash Proceeds of one or more Equity Offerings;
provided that:




     (1) at least 65% of the original aggregate principal amount of the 2020 Notes issued
under this Indenture (calculated after giving effect to any issuance of Additional 2020
Notes) remains outstanding immediately after giving effect to such redemption; and




     (2) any such redemption by the Company must be made within 90 days after the closing of
such Equity Offering.



     (e) Any prepayment pursuant to this Section 3.08 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.



SECTION 3.09. Mandatory Redemption.




     Except as set forth in Section 4.08 and 4.11 hereof, the Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.



ARTICLE 4

COVENANTS




     To the extent that any provisions of this Article 4 are duplicative or conflict with any
provision of the Base Indenture, this Article 4 shall govern and be controlling solely with respect
to the Notes.



SECTION 4.01. Payment of Notes.




     The Company shall pay or cause to be paid the principal of, premium, if any, 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 the Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for and sufficient to
pay all principal, premium,



41









 




if any, and interest then due and the Paying Agent is not prohibited from paying such money to
the Holders on that date. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.




SECTION 4.02. Maintenance of Office or Agency.




     (a) The Company shall maintain an office or agency (which may be an office or drop facility of
the Trustee or an affiliate of the Trustee or Registrar) where Notes may be presented or
surrendered for registration of transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.



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



     (c) The Company hereby designates the Corporate Trust Office of the Trustee, as one such
office, drop facility or agency of the Company in accordance with Section 4.02(a).



SECTION 4.03. Reports.




     (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will provide the Trustee and Holders and prospective Holders within the
time periods specified in the SEC’s rules and regulations (plus any extensions granted pursuant to
SEC rules), copies of:




     (1) annual reports on Form 10-K, or any successor or comparable form, containing the
information required to be contained therein, or required in such successor or comparable
form;




     (2) quarterly reports on Form 10-Q, containing the information required to be contained
therein, or any successor or comparable form;




     (3) from time to time after the occurrence of an event required to be therein reported,
such other reports on Form 8-K, or any successor or comparable form; and




     (4) any other information, documents and other reports which the Company would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act.



     (b) Notwithstanding whether the Company is subject to the periodic reporting requirements of
the Exchange Act, the Company will nevertheless continue filing the reports specified above unless
the SEC will not accept such a filing. The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. Notwithstanding the foregoing, to the extent the
Company files the information and reports referred to in clauses (1) through (4) above with the SEC
and such information is publicly available on the Internet, the Company shall be deemed to be in
compliance with its obligations to furnish such information to the Holders of the Notes. If,
notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the
Company will post the reports referred to in the



42









 




preceding paragraph on its website within the time periods that would apply if the Company
were required to file those reports with the SEC.




     (c) In addition, the Company shall furnish to the Trustee and the Holders, upon their request,
copies of the annual report to shareholders and any other information provided by the Company to
its public shareholders generally.



SECTION 4.04. Compliance Certificate.




     (a) The Company and each Subsidiary Guarantor shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the Company or such
Subsidiary Guarantor has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge the Company or such Subsidiary Guarantor has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Notes is prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. For the purposes of this
paragraph, such compliance shall be determined without regard to any grace period or requirement of
notice provided under this Indenture. The Company shall also comply with TIA Section 314(a)(4).



     (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith and in any event within 30 days upon any Officer becoming aware of any Default or Event
of Default or an event which, with notice or the lapse of time or both, would constitute an Event
of Default, an Officers’ Certificate specifying such Default or Event of Default and what action
the Company is taking or proposes to take with respect thereto.



SECTION 4.05. Restricted Payments.




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




     (1) declare or pay any dividend, make any distribution on or in respect of its Capital
Stock or make any similar payment (including any payment in connection with any merger or
consolidation involving the Company or any Restricted Subsidiary) to the direct or indirect
holders of its Capital Stock in their capacity as such, except (A) dividends or
distributions payable solely in its Capital Stock (other than Disqualified Stock or, in the
case of a Restricted Subsidiary, Preferred Stock) and (B) dividends or distributions payable
to the Company or a Restricted Subsidiary (and, if such Restricted Subsidiary has Capital
Stock held by Persons other than the Company or other Restricted Subsidiaries, to such other
Persons on no more than a pro rata basis);




     (2) purchase, repurchase, redeem, retire or otherwise acquire (“Purchase”) for value
any Capital Stock of the Company held by any Person (other than Capital Stock held by the
Company or a Restricted Subsidiary) or any Capital Stock of a Restricted Subsidiary held by
an



43









 







affiliate of the Company (other than by a Restricted Subsidiary) (other than in
exchange for Capital Stock of the Company that is not Disqualified Stock); or




     (3) purchase for value, prior to scheduled maturity, any scheduled repayment or any
scheduled sinking fund payment, any Subordinated Obligations (other than the Purchase for
value of Subordinated Obligations acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one year of the
date of such Purchase)


(any such dividend, distribution, payment or Purchase being referred to as a “Restricted Payment”),
if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:





     (A) a Default shall have occurred and be continuing (or would result therefrom);




     (B) the Company could not Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.07(a); or




     (C) the aggregate amount of such Restricted Payment and all other Restricted Payments
(the amount so expended, if other than in cash, to be determined in good faith by a
Financial Officer of the Company, whose determination will be conclusive; provided, however,
that with respect to any non-cash Restricted Payment in excess of $25.0 million, the amount
so expended shall be determined in accordance with the provisions of the definition of Fair
Market Value) declared or made subsequent to the Issue Date would exceed the sum, without
duplication, of:




     (i) 50% of the Consolidated Net Income accrued during the period (treated as
one accounting period) from the beginning of the fiscal quarter immediately
following the fiscal quarter during which the Issue Date occurs to the end of the
most recent fiscal quarter for which financial statements are available prior to the
date of such Restricted Payment (or, in case such Consolidated Net Income will be a
deficit, minus 100% of such deficit); plus




     (ii) 100% of the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to
the Issue Date (other than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees) and 100% of any cash capital contribution received by the Company from
its shareholders subsequent to the Issue Date; plus




     (iii) the amount by which Indebtedness of the Company or its Restricted
Subsidiaries is reduced on the Company’s Consolidated balance sheet upon the
conversion or exchange (other than by a Subsidiary of the Company) subsequent to the
Issue Date of any Indebtedness of the Company or its Restricted Subsidiaries issued
after the Issue Date which is convertible or exchangeable for Capital Stock (other
than Disqualified Stock) of the Company (less the amount of any cash or the Fair
Market Value of other property distributed by the Company or any Restricted
Subsidiary upon such conversion or exchange).



     (b) Notwithstanding the foregoing, the provisions set forth in Section 4.05(a) shall not
prohibit:



44









 






     (1) any Restricted Payment made out of the Net Cash Proceeds of the substantially
concurrent sale of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the
Company or an employee stock ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees to the extent such sale to such an
employee stock ownership plan or trust is financed by loans from or guaranteed by the
Company or any Restricted Subsidiary unless such loans have been repaid with cash on or
prior to the date of determination) or a substantially concurrent cash capital contribution
received by the Company from its shareholders; provided, however, that:




     (A) such Restricted Payment shall be excluded in the calculation of the amount
of Restricted Payments, and




     (B) the Net Cash Proceeds from such sale applied in the manner set forth in
this clause (1) shall be excluded from the calculation of amounts under clause
(C)(ii) of paragraph (a) above;




     (2) any prepayment, repayment or Purchase for value of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially concurrent sale
of, other Subordinated Obligations; provided, however, that such prepayment, repayment or
Purchase for value shall be excluded in the calculation of the amount of Restricted
Payments;




     (3) dividends paid within 60 days after the date of declaration thereof if at such date
of declaration such dividends would have complied with this covenant; provided, however,
that such dividends shall be included in the calculation of the amount of Restricted
Payments;




     (4) any Purchase for value of Capital Stock of the Company or any of its Subsidiaries
from employees, former employees, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former employees, directors or
former directors), pursuant to the terms of agreements (including employment agreements) or
plans (or amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or sell, shares of such
Capital Stock; provided, however, that the aggregate amount of such Purchases for value will
not exceed $20.0 million in any calendar year; provided further, however, that any of the
$20.0 million permitted to be applied for Purchases under this clause (4) in a calendar year
(and not so applied) may be carried forward for use in the following two calendar years;
provided further, however, that such Purchases for value shall be excluded in the
calculation of the amount of Restricted Payments;




     (5) so long as no Default has occurred and is continuing, payments of dividends on
Disqualified Stock issued after the Issue Date pursuant to Section 4.07; provided, however,
that such dividends shall be included in the calculation of the amount of Restricted
Payments;




     (6) repurchases of Capital Stock deemed to occur upon exercise of stock options if such
Capital Stock represents a portion of the exercise price of such options; provided, however,
that such Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments;




     (7) so long as no Default has occurred and is continuing, any prepayment, repayment or
Purchase for value of Subordinated Obligations from Net Available Cash to the extent
permitted under the covenant described under Section 4.08; provided, however, that such



45









 






prepayment, repayment or Purchase for value shall be excluded in the calculation of the
amount of Restricted Payments;




     (8) payments to holders of Capital Stock (or to the holders of Indebtedness that is
convertible into or exchangeable for Capital Stock upon such conversion or exchange) in lieu
of the issuance of fractional shares; provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments;




     (9) Restricted Payments if, at the time of making such payments, and after giving
effect thereto (including, without limitation, the Incurrence of any Indebtedness to finance
such payment), the Total Leverage Ratio would not exceed 3.75 to 1.00; provided, however,
that at the time of each such Restricted Payment, no Default shall have occurred and be
continuing (or result therefrom); and provided further, however, that such amounts shall be
included in the calculation of the amount of Restricted Payments; or




     (10) any Restricted Payment in an amount which, when taken together with all Restricted
Payments made after the Issue Date pursuant to this clause (10), does not exceed $500.0
million; provided, however, that (A) at the time of each such Restricted Payment, no Default
shall have occurred and be continuing (or result therefrom) and (B) such Restricted Payments
shall be excluded in the calculation of the amount of Restricted Payments.



SECTION 4.06. Dividend and Other Payment Restrictions Affecting Subsidiaries.




     The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
create or otherwise cause or permit to exist or become effective any contractual encumbrance or
restriction on the ability of any Restricted Subsidiary to:



     (1) pay dividends or make any other distributions on its Capital Stock;



     (2) pay any Indebtedness or other obligations owed to the Company;



     (3) make any loans or advances to the Company; or



     (4) transfer any of its property or assets to the Company,


except, with respect to clauses (1), (2), (3) and (4), for such encumbrances or restrictions
existing under or by reason of:





     (A) any encumbrance or restriction pursuant to (i) applicable law, rule, regulation or
order or (ii) an agreement in effect at or entered into on the Issue Date;




     (B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to
the date on which such Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred as consideration in, in contemplation of, 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 Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by the Company) and outstanding on such date;




     (C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of
Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of this



46









 






covenant or this clause (C) or contained in any amendment to an agreement referred to
in clause (A) or (B) of this covenant or this clause (C); provided, however, that the
encumbrances and restrictions contained in any such Refinancing agreement or amendment are
no less favorable in any material respect to the Holders than the encumbrances and
restrictions contained in such predecessor agreements;




     (D) any encumbrance or restriction pursuant to an agreement with respect to
Indebtedness incurred in reliance on Section 4.07(b)(1);




     (E) in the case of clause (4), any encumbrance or restriction:




     (i) that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license or similar
contract, or the assignment or transfer of any such lease, license or other
contract; or




     (ii) contained in mortgages, pledges and other security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the property subject to such security
agreements;




     (F) with respect to a Restricted Subsidiary, any restriction imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all the Capital
Stock or assets of such Restricted Subsidiary pending the closing of such sale or
disposition;




     (G) any encumbrance or restriction existing under or by reason of Indebtedness or other
contractual requirements of a Receivables Entity in connection with a Qualified Receivables
Transaction or the Company with respect to Standard Securitization Undertakings in
connection with a Qualified Receivables Transaction;




     (H) purchase money obligations for property acquired in the ordinary course of business
and Capitalized Lease Obligations that impose restrictions on the property purchased or
leased of the nature described in clause (4) above;




     (I) provisions with respect to the disposition or distribution of assets or property in
or with respect to joint venture agreements, asset sale agreements, stock sale agreements
and other similar agreements;




     (J) restrictions on cash or other deposits or net worth imposed by customers, lenders,
suppliers or, in the ordinary course of business, other third parties or by Liens permitted
pursuant to clause (22) of the definition of “Permitted Liens”; and




     (K) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in
the terms of any Indebtedness, or any agreement pursuant to which such Indebtedness was
issued or any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive (as determined by the Company in good faith) in any
material respect than those contained in such agreements or instruments in effect on the
Issue Date.



SECTION 4.07. Limitation on Indebtedness.







47









 








     (a) The Company will not, and will not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any Subsidiary Guarantor may
Incur Indebtedness if on the date of such Incurrence and after giving effect thereto and the
application of the proceeds therefrom the Consolidated Interest Coverage Ratio would be greater
than 2.0:1.0.



     (b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries
may Incur the following Indebtedness:




     (1) Indebtedness under Credit Facilities in an aggregate principal amount not to exceed
the greater of (A) $1,275.0 million, less the aggregate amount of all prepayments of
principal applied to permanently reduce any such Indebtedness in satisfaction of the
Company’s obligations under Section 4.08; and (B) the sum of (i) 60% of the book value of
the inventory of the Company and its Restricted Subsidiaries plus (ii) 80% of the book value
of the accounts receivable of the Company and its Restricted Subsidiaries (other than any
accounts receivable pledged, sold or otherwise transferred or encumbered by the Company or
any Restricted Subsidiary in connection with a Qualified Receivables Transaction), in each
case, as of the end of the most recent fiscal quarter for which financial statements are
available;




     (2) Indebtedness of the Company owed to and held by any Restricted Subsidiary or
Indebtedness of a Restricted Subsidiary owed to and held by the Company or any Restricted
Subsidiary; provided, however, that any subsequent event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Restricted Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Indebtedness by the issuer thereof;




     (3) Indebtedness (A) represented by the notes (not including any Additional Notes) and
the Subsidiary Guarantees, (B) outstanding on the Issue Date (other than the Indebtedness
described in clauses (1) and (2) above) and (C) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness
that is Refinancing Indebtedness) or the foregoing paragraph (a);




     (4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to
the date on which such Restricted Subsidiary was acquired by the Company or a Restricted
Subsidiary (other than Indebtedness Incurred in contemplation of, in connection with, 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
Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company);
provided, however, that on the date that such Restricted Subsidiary is acquired by the
Company, (i) the Company would have been able to Incur $1.00 of additional Indebtedness
pursuant to the foregoing paragraph (a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (4) or (ii) the Consolidated Interest Coverage Ratio
immediately after giving effect to such Incurrence and acquisition would be equal to or
greater than such ratio immediately prior to such transaction and (B) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by such
Restricted Subsidiary pursuant to this clause (4);




     (5) Indebtedness in respect of (A) performance bonds, bankers’ acceptances, letters of
credit, bank guarantees and surety or appeal bonds entered into by the Company or any
Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations
entered into in the ordinary course of business to hedge risks with respect to the Company’s
or a Restricted Subsidiary’s interest rate, currency or raw materials pricing exposure or in
connection with the issuance of convertible debt and not entered into for speculative
purposes;



48









 






     (6) Purchase Money Indebtedness, Capitalized Lease Obligations and Attributable Debt
and Refinancing Indebtedness in respect thereof in an aggregate principal amount on the date
of Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause
(6) and then outstanding, will not exceed the greater of (A) $300.0 million and (B) 5.0% of
Consolidated Total Assets of the Company as of the end of the most recent fiscal quarter for
which financial statements are available;




     (7) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables
Transaction;




     (8) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business; provided, however, that such Indebtedness is extinguished within five Business
Days of a Financial Officer’s becoming aware of its Incurrence;




     (9) any Guarantee by the Company or a Restricted Subsidiary of Indebtedness or other
obligations of the Company or any of its Restricted Subsidiaries so long as the Incurrence
of such Indebtedness or other obligations by the Company or such Restricted Subsidiary is
permitted under the terms of this Indenture (other than Indebtedness Incurred pursuant to
clause (4) above);




     (10) Indebtedness incurred by Foreign Subsidiaries pursuant to working capital lines of
credit or any overdraft line or other cash management system in the ordinary course of
business;




     (11) Indebtedness owed by the Company or a Restricted Subsidiary to a joint venture or
similar entity in an amount not to exceed $50.0 million at any time; provided, however, that
the Company or a Restricted Subsidiary owns, through securities or otherwise, at least 25%
of the voting or economic interests of the joint venture or similar entity;




     (12) Indebtedness of the Company or a Restricted Subsidiary in an amount not to exceed
$50.0 million Incurred in contemplation of, in connection with, 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 Restricted Subsidiary
became a Subsidiary of or was otherwise acquired by the Company whether by means of the
acquisition of assets or the Capital Stock of such entity; provided, however, that on the
date that such Restricted Subsidiary is acquired by the Company, (i) the Company would have
been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a)
after giving effect to the Incurrence of such Indebtedness pursuant to this clause (12) or
(ii) the Consolidated Interest Coverage Ratio immediately after giving effect to such
Incurrence and acquisition would be equal to or greater than such ratio immediately prior to
such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in
respect of Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (12);




     (13) Indebtedness of a Foreign Subsidiary in an aggregate principal amount not to
exceed $150.0 million at any time;




     (14) Indebtedness under tax-favored or government-sponsored financing transactions;
provided that (i) such Indebtedness is not senior in right of payment to the notes and (ii)
the aggregate principal amount of such Indebtedness shall not exceed $75.0 million at any
time; and



49









 






     (15) Indebtedness of the Company and the Restricted Subsidiaries in an aggregate
principal amount on the date of Incurrence that, when added to all other Indebtedness
Incurred pursuant to this clause (15) and then outstanding, will not exceed the greater of
(A) $500.0 million and (B) 8.0% of Consolidated Total Assets.



     (c) For purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this covenant:




     (1) Outstanding Indebtedness Incurred pursuant to the Credit Agreement prior to or on
the Issue Date shall be deemed to have been Incurred pursuant to clause (1) of paragraph (b)
above;




     (2) Indebtedness permitted by this covenant 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 covenant permitting such
Indebtedness; and




     (3) in the event that Indebtedness meets the criteria of more than one of the types of
Indebtedness described in this covenant, the Company, in its sole discretion, shall classify
such Indebtedness (or any portion thereof) as of the time of Incurrence and will only be
required to include the amount of such Indebtedness in one of such clauses (provided that
any Indebtedness originally classified as Incurred pursuant to clauses (b)(2) through
(b)(15) above may later be reclassified as having been Incurred pursuant to paragraph (a) or
any other of clauses (b)(2) through (b)(15) above to the extent that such reclassified
Indebtedness could be Incurred pursuant to paragraph (a) or one of clauses (b)(2) through
(b)(15) above, as the case may be, if it were Incurred at the time of such
reclassification).



     (d) For purposes of determining compliance with any U.S. dollar denominated restriction on the
Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency,
the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the
Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a
different currency is subject to a Currency Agreement with respect to U.S. dollars covering all
principal, premium, if any, and interest payable on such Indebtedness, the amount of such
Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The
principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness
being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced determined on
the date of the Incurrence of such Indebtedness, except to the extent that (1) such U.S. Dollar
Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness
will be determined in accordance with the immediately preceding sentence, and (2) the principal
amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being
Refinanced, in which case the U.S. Dollar Equivalent of such excess, as appropriate, will be
determined on the date such Refinancing Indebtedness is Incurred. Notwithstanding the foregoing,
the maximum amount of Indebtedness that may be incurred pursuant to this covenant shall not be
deemed to be exceeded with respect to any outstanding Indebtedness due solely to the fluctuations
in the exchange rates of currencies.



SECTION 4.08. Limitation on Sales of Assets and Subsidiary Stock.




     (a) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset
Disposition unless:



50









 






     (1) the Company or such Restricted Subsidiary receives consideration (including by way
of relief from, or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition;




     (2) at least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or Additional Assets, and;




     (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or such Restricted Subsidiary, as the case may be):




          (A) first, to the extent the Company elects (or is required by the terms of any
applicable Indebtedness), to prepay, repay, purchase, repurchase, redeem, retire, defease or
otherwise acquire for value Senior Indebtedness of the Company or a Subsidiary Guarantor or
Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than
Indebtedness owed to the Company or an Affiliate of the Company and other than obligations
in respect of Disqualified Stock, within 365 days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash;




          (B) second, to acquire Additional Assets (or otherwise to make capital expenditures),
in each case within 365 days after the later of the date of such Asset Disposition or the
receipt of such Net Available Cash;




          (C) third, to the extent of the balance of such Net Available Cash after application in
accordance with clauses (A) and (B), to make an Asset Sale Offer (as defined in paragraph
(c) of this covenant below) to purchase notes pursuant to and subject to the conditions set
forth in paragraph (c) of this covenant; provided, however, that if the Company elects (or
is required by the terms of any other Senior Indebtedness), such Asset Sale Offer may be
made ratably to purchase the notes and any Senior Indebtedness of the Company; and




          (D) fourth, to the extent of the balance of such Net Available Cash after application
in accordance with clauses (A), (B) and (C), for any general corporate purpose permitted by
the terms of this Indenture;




provided, however, that in connection with any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant
to clause (A) or (C) above, the Company or such Restricted Subsidiary will retire such
Indebtedness and will cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid, purchased, repurchased,
redeemed, retired, defeased or otherwise acquired for value.




Notwithstanding the foregoing provisions of this paragraph (3), the Company and its
Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance
with this covenant except to the extent that the aggregate Net Available Cash from all Asset
Dispositions that is not applied in accordance with this covenant exceeds $25.0 million.
Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash
may be used or invested in any manner that is not prohibited by this Indenture.



     (b) For purposes of this Section 4.08, the following are deemed to be cash:




     (1) the assumption of Indebtedness or other obligations of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary
(other



51









 






than obligations in respect of Disqualified Stock and Preferred Stock of a Restricted
Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted
Subsidiary from all liability on such Indebtedness or obligations in connection with such
Asset Disposition;




     (2) any Designated Non-Cash Consideration having an aggregate Fair Market Value that,
when taken together with all other Designated Non-Cash Consideration received pursuant to
this clause and then outstanding, does not exceed at the time of the receipt of such
Designated Non-Cash Consideration (with the Fair Market Value of each item of Designated
Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value) the greater of (1) $200.0 million and (2) 3.0% of the
Consolidated Total Assets of the Company as shown on the most recent balance sheet of the
Company filed with the SEC;




     (3) securities, notes or similar obligations received by the Company or any Restricted
Subsidiary from the transferee that are promptly converted by the Company or such Restricted
Subsidiary into cash;




     (4) Temporary Cash Investments.



     (c) In the event of an Asset Disposition that requires the purchase of notes pursuant to
clause (a)(3)(C) of this Section 4.08, the Company will be required:




     (1) to purchase notes tendered pursuant to an offer by the Company for the notes (the
“Asset Sale Offer”) at a purchase price of 100% of their principal amount plus accrued and
unpaid interest to the date of purchase (subject to the right of Holders of record on the
relevant date to receive interest due on the relevant Interest Payment Date) in accordance
with the procedures (including prorating in the event of oversubscription), set forth in
this Indenture; and




     (2) to purchase other Senior Indebtedness of the Company on the terms and to the extent
contemplated thereby; provided that in no event shall the Company offer to purchase such
Senior Indebtedness of the Company at a purchase price in excess of 100% of its principal
amount (without premium) or, unless otherwise provided for in such Senior Indebtedness, the
accreted amount, if issued with original issue discount, plus accrued and unpaid interest
thereon.




If the aggregate purchase price of notes (and Senior Indebtedness) tendered pursuant to the
Asset Sale Offer is less than the Net Available Cash allotted to the purchase of the notes
(and other Senior Indebtedness), the Company will apply the remaining Net Available Cash in
accordance with clause (a)(3)(D) of this covenant. The Company will not be required to make
an Asset Sale Offer for notes (and Senior Indebtedness) pursuant to this covenant if the Net
Available Cash available therefor (after application of the proceeds as provided in clauses
(a)(3)(A) and (B)) is less than $25.0 million for any particular Asset Disposition (which
lesser amount will be carried forward for purposes of determining whether an Asset Sale
Offer is required with respect to the Net Available Cash from any subsequent Asset
Disposition).



     (d) The Company shall, not later than 45 days after the Company becomes obligated to make an
Asset Sale Offer pursuant to this Section 4.08, mail a notice to each Holder with a copy to the
Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the
Notes has occurred and that such Holder has the right (subject to the prorating described below) to
require the Company to purchase a portion of such Holder’s Notes at a purchase price in cash equal
to 100% of the aggregate principal amount thereof on the purchase date, 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); (2) the repurchase date (which
shall be no earlier than 30 days nor later than 60



52









 




days from the date such notice is mailed); (3) the instructions determined by the Company,
consistent with this Section 4.08, that a Holder must follow in order to have its Notes purchased;
and (4) the amount of the Asset Sale Offer. If, upon the expiration of the period for which the
Asset Sale Offer remains open, the aggregate principal amount of Notes surrendered by Holders
exceeds the amount of the Asset Sale Offer, the Company shall select the Notes to be purchased on a
pro rata basis.




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



SECTION 4.09. Affiliate Transactions.




     (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction or series of related transactions (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 such transaction is on terms:




     (1) that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such transaction in arm’s
length dealings with a Person who is not such an Affiliate;




     (2) that, in the event such Affiliate Transaction involves an aggregate amount in
excess of $25.0 million;




          (A) are set forth in writing; and




          (B) have been approved by a majority of the members of the Board of Directors who are
disinterested directors as to such Affiliate Transaction;




     (3) that, in the event such Affiliate Transaction involves an amount in excess of
$150.0 million, have been determined by a nationally recognized appraisal, accounting or
investment banking firm to be fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries.



     (b) The restrictions set forth in Section 4.09(a) hereof shall not prohibit:




     (1) any Restricted Payment permitted to be paid pursuant to Section 4.05;




     (2) any issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans approved by the Board of Directors;




     (3) the grant of stock options or similar rights to employees and directors of the
Company pursuant to plans approved by the Board of Directors;




     (4) loans or advances to employees in the ordinary course of business of the Company in
an aggregate amount not to exceed $5 million at any one time outstanding;



53









 






     (5) the payment of reasonable fees and compensation to, or the provision of employee
benefit arrangements and indemnity for the benefit of, directors, officers and employees of
the Company and its Restricted Subsidiaries in the ordinary course of business;




     (6) any transaction between or among any of the Company, any Restricted Subsidiary or
any joint venture or similar entity which would constitute an Affiliate Transaction solely
because the Company or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity;




     (7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company;




     (8) any agreement as in effect on the Issue Date and listed on a schedule to this
Indenture, or any renewals, extensions or amendments of any such agreement (so long as such
renewals, extensions or amendments are not less favorable in any material respect to the
Company or its Restricted Subsidiaries) and the transactions evidenced thereby;




     (9) transactions with customers, clients, suppliers or purchasers or sellers of goods
or services in each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, in
the reasonable determination of the Board of Directors or the senior management thereof, or
are on terms at least as favorable as might reasonably have been obtained at such time from
an unaffiliated party; or




     (10) any transaction effected as part of a Qualified Receivables Transaction.



SECTION 4.10. Liens.




     The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, Incur or permit to exist any Lien (the “Initial Lien”) of any nature whatsoever on any
of its property or assets (including Capital Stock of a Restricted Subsidiary), whether owned at
the Issue Date or thereafter acquired, which Initial Lien secures any Indebtedness, other than
Permitted Liens, without effectively providing that the notes shall be secured equally and ratably
with (or prior to) the obligations so secured for so long as such obligations are so secured. Any
Lien created for the benefit of the Holders of the notes pursuant to the preceding sentence shall
provide by its terms that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien.



SECTION 4.11. Offer to Repurchase Upon Change of Control.



     (a) If a Change of Control occurs, each Holder shall have the right to require the Company to
purchase all or any part of such Holder’s Notes pursuant to the offer described below (the “Change
of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued
and unpaid interest 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). Within 30 days
following the date upon which the Change of Control occurred, the Company must send, by first class
mail, a notice to the Trustee and each Holder, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state, among other things, the purchase date, which must be no
earlier than 30 days nor later than 60 days from the date such notice is mailed, other than as may
be required by law (the “Change of Control Payment Date”). Holders electing to have a Note
purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with the
form entitled “Option of Holder to Elect Purchase” on the



54









 




reverse of the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Change of Control Payment
Date.




     (b) On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver or cause to be delivered to
the applicable Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the Company. 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 deliver (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 will be in a principal
amount of $2,000 or an integral multiple of $1,000 thereafter. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.



     (c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act to the
extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant
to a Change of Control Offer. To the extent that the Company complies with the provisions of any
such securities laws or regulations, the Company shall not be deemed to have breached its
obligations under this Section 4.11.



     (d) Notwithstanding anything to the contrary in this Section 4.11, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.11 hereof and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. In addition, the Company will not be required to
make a Change of Control Offer upon a Change of Control if the Notes have been or are called for
redemption by the Company prior to it being required to mail notice of the Change of Control Offer,
and thereafter redeems all Notes called for redemption in accordance with the terms set forth in
such redemption notice.



     (e) A change of Control Offer may be made in advance of a change of Control, and conditioned
upon, the consummation of such Change of Control, if a definitive agreement is in place for the
Change of Control at the time the Change of Control Offer is made.



SECTION 4.12. Corporate Existence




     Except as otherwise permitted by Article 5 hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.



SECTION 4.13. Additional Subsidiary Guarantors.



     The Company will cause each new Domestic Subsidiary that is a Guarantor of (i) the Credit
Agreement; (ii) any Credit Facilities incurred in reliance on Section 4.07(b)(1); or (iii) any
single issuance of capital markets indebtedness incurred under paragraph (a) or clause (b)(15) of
Section 4.07 in an aggregate principal amount equal to or greater than $200.0 million (“Material
Capital Markets Indebtedness,” and together with the Indebtedness described in clauses (i) and
(ii), “Material Indebtedness”) to execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiary will Guarantee payment of the notes. In addition, the Company
will cause each Foreign Subsidiary that becomes a Guarantor of any Material Indebtedness of the
Company or a Domestic Subsidiary to execute and deliver to the Trustee a supplemental indenture
pursuant to which such



55









 




Subsidiary will Guarantee payment of the notes. Each Subsidiary Guarantee will be limited to
an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary Guarantor
without rendering the Subsidiary Guarantee, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.




SECTION 4.14. Limitation on Sale and Leaseback Transactions.




     The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction with respect to any property unless:




     (A) the Company or such Restricted Subsidiary would be entitled to:




     (i) Incur Indebtedness with respect to such Sale and Leaseback Transaction pursuant to
Section 4.07; and




     (ii) create a Lien on such property securing such Indebtedness without equally and
ratably securing the notes pursuant to Section 4.10;




     (B) the gross proceeds payable to the Company or such Restricted Subsidiary in
connection with such Sale and Leaseback Transaction are at least equal to the Fair Market
Value of such property; and




     (C) the transfer of such property is permitted by, and, if applicable, the Company
applies the proceeds of such transaction in compliance with Section 4.08.



SECTION 4.15. Suspension of Covenants.




     (a) Following the first day (the “Suspension Date”) that (i) the Notes have an Investment
Grade Rating from both of the Rating Agencies, and (ii) no Default has occurred and is continuing
under this Indenture, the Company and its Restricted Subsidiaries shall not be subject to the
following provisions of this Indenture:




     (1) Section 4.05;




     (2) Section 4.06;




     (3) Section 4.07;




     (4) Section 4.08;




     (5) Section 4.09;




     (6) Section 4.13;




     (7) clause (a) (3) of Section 5.01;


(collectively, the “Suspended Covenants”).



In addition, the Company may elect to suspend the Subsidiary Guarantees. In the event that the
Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period
of time as a result of the foregoing and on any subsequent date (the “Reversion Date”) one or both
of the Rating






56









 







Agencies withdraws its Investment Grade Rating or downgrades the rating assigned to the notes below
an Investment Grade Rating, then the Company and its Restricted Subsidiaries will thereafter again
be subject to the Suspended Covenants with respect to future events and the Subsidiary Guarantees
will be reinstated to the extent required by this Indenture. The period of time between the
Suspension Date and the Reversion Date is referred to in this description as the “Suspension
Period.” Notwithstanding that the Suspended Covenants may be reinstated, no default will be deemed
to have occurred as a result of a failure to comply with the Suspended Covenants during the
Suspension Period. During any Suspension Period, the Company may not designate any Subsidiary to
be an Unrestricted Subsidiary unless the Company would have been permitted to designate such
Subsidiary to be an Unrestricted Subsidiary if a Suspension Period had not been in effect for any
period.




     (b) On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be
classified to have been Incurred pursuant to Section 4.07(a) or one of the clauses set forth in
Section 4.07 (b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as
of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension
Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so
permitted to be Incurred pursuant to paragraph (a) or (b) of Section 4.07, such Indebtedness will
be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under
Section 4.07(b)(3)(B). Calculations made after the Reversion Date of the amount available to be
made as Restricted Payments under Section 4.05 will be made as though Section 4.05 had been in
effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments
made during the Suspension Period will reduce the amount available to be made as Restricted
Payments under Section 4.05(a) and the items specified in subclause (C) of paragraph (a) of Section
4.05 will increase the amount available to be made under paragraph (a) thereof. For purposes of
determining compliance with paragraphs (a) and (b) of Section 4.08, the Net Available Cash from all
Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero
after the Reversion Date.



     (c) In addition, if it would not cause a Default or Event of Default, the Company and the
Restricted Subsidiaries may honor any contractual commitments to take actions in the future after
any date on which the Notes no longer have an Investment Grade Rating from both of the Rating
Agencies as long as such contractual commitments were entered into during a Suspension Period and
not in anticipation of the Notes no longer having an Investment Grade Rating from both of the
Rating Agencies.



ARTICLE 5

SUCCESSORS




     To the extent that any provisions of this Article 5 are duplicative or conflict with any
provision of the Base Indenture, this Article 5 shall govern and be controlling solely with respect
to the Notes.



SECTION 5.01. Merger, Consolidation, or Sale of Assets.




     (a) The Company will not, directly or indirectly, consolidate with or merge with or into, or
convey, transfer or lease all or substantially all its assets in one or a series of related
transactions to, any Person, unless:




     (1) the resulting, surviving or transferee Person (the “Successor Company”) will be a
corporation organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Company) will
expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under the notes and
this Indenture;



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     (2) 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 shall have occurred and
be continuing;




     (3) immediately after giving effect to such transaction, (A) the Successor Company
would be able to Incur an additional $1.00 of Indebtedness under Section 4.07(a) or (B) the
Consolidated Interest Coverage Ratio for the Successor Company would be equal to or greater
than such ratio for the Company and its Restricted Subsidiaries immediately prior to such
transaction; and




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



     (b) In addition, the Company will not permit any Subsidiary Guarantor to, directly or
indirectly, consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets in one or a series of related transactions to, any Person, unless:




     (1) except in the case of a Subsidiary Guarantor (i) that has been disposed of in its
entirety to another Person (other than to the Company or an Affiliate of the Company),
whether through a merger, consolidation or sale of Capital Stock or assets or (ii) that, as
a result of the disposition of all or a portion of its Capital Stock, ceases to be a
Subsidiary, the resulting, surviving or transferee Person (the “Successor Guarantor”) will
be a corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not such Subsidiary
Guarantor) will expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee;




     (2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Guarantor or any Restricted 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 shall have occurred and
be continuing;




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



     (c) Notwithstanding the foregoing:




     (1) any Restricted Subsidiary may Consolidate with, merge into or transfer all or part
of its properties and assets to the Company or any Subsidiary Guarantor and;




     (2) the Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction within the United States of America, any
state thereof or the District of Columbia to realize tax or other benefits.



SECTION 5.02. Successor Corporation Substituted.




     Upon any consolidation, merger or any transfer of all or substantially all of the assets of
the Company in accordance with Section 5.01 hereof, in which the Company is not the continuing



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corporation, the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of the Company under this Indenture and the Notes with
the same effect as if such surviving entity had been named as such and that, in the event of a
conveyance or transfer (but not a lease), the conveyor or transferor (but not a lessor) shall be
released from the provisions of this Indenture.




ARTICLE 6

DEFAULTS AND REMEDIES




     To the extent that any provisions of this Article 6 are duplicative or conflict with any
provision of the Base Indenture, this Article 6 shall govern and be controlling solely with respect
to the Notes.



SECTION 6.01. Events of Default.




     Each of the following is an “Event of Default” with respect to each series of Notes:



     (a) a default in any payment of interest on the Notes of such series when due and payable and
such default continues for a period of 30 days;



     (b) a default in the payment of principal of any Notes of such series when due and payable, at
Stated Maturity, upon optional redemption or required repurchase, upon declaration of acceleration
or otherwise;



     (c) the failure by the Company or any Subsidiary Guarantor to comply with its obligations
under Section 5.01 above;



     (d) the failure by the Company or any Restricted Subsidiary to comply with any of its
obligations under Section 4.11 or Sections 4.05 to 4.10, Sections 4.13 and 4.14 for 30 days after
the Company receives written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes;



     (e) the failure by the Company or any Restricted Subsidiary to comply with its other
agreements contained in this Indenture for 60 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Notes;



     (f) the failure by the Company or any Restricted Subsidiary to pay any Indebtedness (other
than Indebtedness owing to the Company or a Restricted Subsidiary) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the holders thereof
because of a default if the total amount of such Indebtedness unpaid or accelerated exceeds $100.0
million or its foreign currency equivalent;



     (g) the rendering of any final and nonappealable judgment or decree (not covered by insurance)
for the payment of money in excess of $100.0 million or its foreign currency equivalent (treating
any deductibles, self-insurance or retention as not so covered) against the Company or a
Significant Subsidiary if such final judgment or decree remains outstanding and is not satisfied,
discharged or waived within a period of 60 days following such judgment;



     (h) any Subsidiary Guarantee ceases to be in full force and effect in all material respects
(except as contemplated by the terms thereof) or any Subsidiary Guarantor denies or disaffirms such



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Subsidiary Guarantor’s obligations under this Indenture or any Subsidiary Guarantee and such
Default continues for 10 days after receipt of the notice as specified in this Indenture;




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




     (i) commences a voluntary case,




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




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




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



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




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




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




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



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



     The foregoing will 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.



     However, a default under clauses (d), (e), (f), (g) or (h) (only with respect to any
Subsidiary Guarantor that is not a Significant Subsidiary) will not constitute an Event of Default
with respect to a series of Notes until the Trustee notifies the Company or the Holders of at least
25% in principal amount of the outstanding Notes of such series notify the Company and the Trustee
of the default and the Company, the Subsidiary Guarantor or the Restricted Subsidiary, as
applicable, does not cure such default within the time specified in clauses (d), (e), (f), (g) or
(h) hereof after receipt of such notice.



SECTION 6.02. Acceleration.





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     If an Event of Default (other than an Event of Default specified in clauses (i) or (j) of
Section 6.01 hereof with respect to the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes of any series may declare
the principal of and accrued interest on all the Notes of such series to be due and payable
immediately by notice in writing to the Company and the Trustee (if given by the Holders)
specifying the respective Event of Default and that it is a “notice of acceleration” (the
“Acceleration Notice”), and the same shall become immediately due and payable. If an Event of
Default specified in clause (i) or (j) of Section 6.01 hereof occurs and is continuing, then all
unpaid principal of, and premium, if any, and accrued and unpaid interest on all the outstanding
Notes shall ipso facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.



     At any time after a declaration of acceleration with respect to the Notes as described in the
preceding paragraph, the Holders of a majority in principal amount of the Notes of any series may
rescind and cancel such declaration with respect to the Notes of such series and its consequences
(i) if the rescission would not conflict with any judgment or decree, (ii) if all existing Events
of Default have been cured or waived except nonpayment of principal or interest that has become due
solely because of the acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid, (iv) if the Company has paid the Trustee
its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and
advances; and (v) in the event of the cure or waiver of an Event of Default of the type described
in clauses (i) or (j) of Section 6.01 hereof, the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent thereto.


SECTION 6.03. Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding
even if it does not possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.


SECTION 6.04. Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes of any series by notice to the Trustee may on behalf of the Holders of all of the Notes of
such series waive an existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of, premium and interest on
the Notes of such series (including in connection with an offer to purchase) (provided, however,
that the Holders of a majority in aggregate principal amount at maturity of the then outstanding
Notes of a series may rescind an acceleration with respect to such series and its consequences,
including any related payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.


SECTION 6.05. Control by Majority.




     Holders of a majority in principal amount of the then outstanding Notes of any series may
direct the time, method and place of conducting any proceeding for exercising any remedy available
to the



61









 




Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes of such series or that may involve the
Trustee in personal liability.



SECTION 6.06. Limitation on Suits.




     A Holder of a Note of any series may pursue a remedy with respect to this Indenture or the
Notes of such series only if:




          (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;




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




          (c) such Holder of a Note or Holders of Notes of such series offer and, if requested,
provide to the Trustee reasonable indemnity to the Trustee against any loss, liability or
expense;




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




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



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


SECTION 6.07. Rights of Holders of Notes to Receive Payment.




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


SECTION 6.08. Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(a) or (b) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium on, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.


SECTION 6.09. Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the



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Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.



SECTION 6.10. Priorities.




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



     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;



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



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



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.


SECTION 6.11. Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its 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 a Holder of a Note pursuant to Section 6.06 hereof, or a suit by Holders
of more than 10% in principal amount of the then outstanding Notes.



ARTICLE 7

TRUSTEE




     To the extent that any provisions of this Article 7 are duplicative or conflict with any
provision of the Base Indenture, this Article 7 shall govern and be controlling solely with respect
to the Notes.



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SECTION 7.01. Duties of Trustee.




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



     (b) Except during the continuance of a Default:




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




     (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. However,
in the case of certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).



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




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




     (ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; 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 6.05 hereof.



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



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



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



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SECTION 7.02. Rights of the Trustee.




     Subject to TIA Section 315:



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



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



     (c) The Trustee may act through its attorneys and agents and 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
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture, provided that the Trustee’s conduct does not constitute willful misconduct or
negligence.



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



     (f) 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 reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction.



     (g) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its reasonable discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall reasonably determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company during normal business hours and upon reasonable notice, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.



     (h) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, and the Trustee shall not be
responsible for any willful misconduct or gross negligence on the part of any agent or attorney
appointed with due care by it under this Indenture.



     (i) The Trustee shall not be required to give any bond or surety in respect of the performance
of its power and duties hereunder.



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



65









 





     (k) The permissive right of the Trustee to take or refrain from taking any actions enumerated
in this Indenture shall not be construed as a duty.



     (l) The Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military authority and
governmental action.



     (m) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Company has been advised as to the likelihood of such
loss or damage and regardless of the form of action.


SECTION 7.03. Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
shall also be subject to Sections 7.10 and 7.11 hereof.


SECTION 7.04. Trustee’s Disclaimer.




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


SECTION 7.05. Notice of Defaults.




     (a) The Trustee shall not be deemed to have notice of any Default with respect to Notes of any
series unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of 25% in
aggregate principal amount of the outstanding Notes of such series, and such notice references the
specific Default or Event of Default, the Notes of such series and this Indenture.



     (b) If a Default occurs and is continuing and is known to the Trustee, the Trustee shall mail
to Holders of the Notes of the applicable series, notice of the Default within the earlier of 90
days after the occurrence of a Default or 30 days after it is actually known to a Trust Officer or
written notice of it is received by the Trustee, unless such Default shall have been cured or
waived. Except in the case of a Default in the payment of principal of, premium, if any, or
interest on any Note of any series (including payments pursuant to the redemption provisions of the
Notes of such series), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the interests of the
Holders of the Notes.



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SECTION 7.06. Reports by Trustee to Holder.




     Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA §313(a) (but if no event
described in TIA §313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA §313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA §313(c).



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


SECTION 7.07. Compensation and Indemnity.




     The Company and the Subsidiary Guarantors shall pay to the Trustee from time to time such
reasonable compensation for its acceptance of this Indenture and services hereunder as the parties
shall agree 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 Company and the Subsidiary Guarantors shall
reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.



     The Company and the Subsidiary Guarantors shall, jointly and severally, indemnify the Trustee
against any and all losses, liabilities or expenses (including reasonable attorneys’ fees and
expenses) incurred by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including the costs and expenses of enforcing this Indenture
against the Company and the Subsidiary Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company and the Subsidiary Guarantors or any
Holder or any other person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the Company and the
Subsidiary Guarantors promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The
Company and the Subsidiary Guarantors need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld.



     The obligations of the Company and the Subsidiary Guarantors under this Section 7.07 shall
survive the resignation or removal of the Trustee, the satisfaction and discharge and the
termination of this Indenture.



     To secure the Company’s and the Subsidiary Guarantors’ 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, except that held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the resignation or removal of the Trustee, the satisfaction and discharge and the
termination of this Indenture.



     In addition, and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture, when the Trustee incurs expenses or renders services after an Event
of



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Default specified in Section 6.01(f) or (g) hereof occurs, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under any Bankruptcy Law.




     “Trustee” for purposes of this Section shall include any predecessor Trustee and the Trustee
in each of its capacities hereunder and each agent, custodian and other person employed to act
hereunder; provided, however, that the negligence, willful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee hereunder.



     The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.


SECTION 7.08. Replacement of Trustee.




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



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



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



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



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



     (d) the Trustee becomes incapable of acting.



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



     If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.



     If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 7.10, such Holder of a Note may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. 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 of the Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 7.07



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



SECTION 7.09. Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation or banking association, the successor
corporation or banking association without any further act shall, if such successor corporation or
banking association is otherwise eligible hereunder, be the successor Trustee.


SECTION 7.10. Eligibility; Disqualification.




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



     This Indenture shall always have a Trustee who satisfies the requirements of TIA §310(a)(1),
(2) and (5). The Trustee is subject to TIA §310(b).


SECTION 7.11. Preferential Collection of Claims Against Company.




     The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA
§311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




     To the extent that any provisions of this Article 8 are duplicative or conflict with any
provision of the Base Indenture, this Article 8 shall govern and be controlling solely with respect
to the Notes.


SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




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


SECTION 8.02. Legal Defeasance and Discharge




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



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otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes
of such series to receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal amount of, premium, if any,
and interest on such Notes when such payments are due, (b) the Company’s obligations with respect
to such Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company’s obligations in connection therewith and (d)
the provisions of this Article 8 with respect to Legal Defeasance. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.



SECTION 8.03. Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and 4.14 hereof with respect to the outstanding
Notes of such series on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter, “Covenant Defeasance”), and the Notes of such series shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act
of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Notes of such series shall not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes of such series, the Company
may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes of such series shall be unaffected thereby. In addition,
upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03
hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(d) and 6.01(e) hereof shall not constitute Events of Default.


SECTION 8.04. Conditions to Legal or Covenant Defeasance.




     The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes of any series:



     In order to exercise either Legal Defeasance or Covenant Defeasance:



     (a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders, cash in United States dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay the principal amount at maturity of, premium and interest on the outstanding Notes
of such series on the stated date for payment thereof or on the applicable redemption date, as the
case may be;



     (b) in the case of an election under Section 8.02 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change
in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of such series will not
recognize income, gain or loss for



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Federal income tax purposes as a result of such Legal Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;




     (c) in the case of an election under Section 8.03 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;



     (d) no Default or Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness all
or a portion of the proceeds of which will be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence and the grant of a Lien to secure such Indebtedness) or insofar
as Section 6.01 (i) or 6.01(h) hereof is concerned, at any time in the period ending on the 91st
day after the date of deposit;



     (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under this Indenture (other than a Default or an Event of Default resulting
from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such
borrowing) or any other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;



     (f) the Company shall have delivered to the Trustee an Opinion of Counsel (which may be
subject to customary exceptions) to the effect that (A) the trust funds will not be subject to any
rights of holders of Senior Debt including, without limitation, those arising under this Indenture,
and (B) after the 91st day following the deposit, the trust funds will not be subject to the effect
of the preference provisions of Section 547 of the United States Federal Bankruptcy Code;



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



     (h) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with; and



     (i) the Company shall have paid or duly provided for payment of all amounts then due to the
Trustee pursuant to Section 7.07 hereof.



     Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above with
respect to a Legal Defeasance need not be delivered if all Notes of such series not therefor
delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due
and payable on the maturity date within one year under arrangements satisfactory to the Trustee for
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company


SECTION 8.05. Deposited Money and U.S. Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.







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     All cash and non-callable U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes of any
series shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of the Notes of
such series of all sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such cash and securities need not be segregated from other funds except to the extent
required by law.



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



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


SECTION 8.06. Satisfaction and Discharge.




     This Indenture shall be discharged and shall cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in
this Indenture) as to all outstanding Notes of any series when (i) either (a) all the Notes of such
series theretofore authenticated and delivered (except lost, stolen or destroyed Notes of such
series which have been replaced or paid and Notes of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Notes of such series not theretofore delivered to the Trustee for
cancellation have become due and payable, pursuant to an optional redemption notice or otherwise,
and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes of such series not
theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and
interest on the Notes of such series to the date of deposit together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be; (ii) the Company has paid all other sums payable under this
Indenture by the Company; and (iii) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied with.


SECTION 8.07. Repayment to Company.




     Any cash or non-callable U.S. Government Obligations deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any,
or interest on, any Note and remaining unclaimed for two years after such principal, and premium,
if any, or interest has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as
an unsecured creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such cash and securities, and all liability of the
Company as trustee thereof, shall thereupon



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cease; provided, however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such cash and securities remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash and securities then
remaining will be repaid to the Company.



SECTION 8.08. Reinstatement.




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


SECTION 8.09. Survival.




     The Trustee’s rights under this Article 8 shall survive termination of this Indenture or the
resignation of the Trustee.



ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER




     To the extent that any provisions of this Article 9 are duplicative or conflict with any
provision of the Base Indenture, this Article 9 shall govern and be controlling solely with respect
to the Notes.


SECTION 9.01. Without Consent of Holder.




     Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture, the Subsidiary Guarantees or the Notes of any series without the consent
of any Holder of a Note of such series to:



     (a) cure any ambiguity, omission, defect or inconsistency;



     (b) provide for the assumption by a successor entity of the obligations of the Company or a
Subsidiary Guarantor under this Indenture;



     (c) provide for uncertificated Notes in addition to or in place of certificated Notes
(provided, however, that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code);



     (d) add additional Guarantees with respect to the notes or to confirm and evidence the
release, termination or discharge of any Guarantee when such release, termination or discharge is
permitted under this Indenture;



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



     (f) make any change that does not adversely affect the rights of any Holder in any material
respect, subject to the provisions of this Indenture;



     (g) make any amendment to the provisions of this Indenture relating to the form,
authentication, transfer and legending of notes; provided, however, that (A) compliance with this
Indenture as so amended would not result in notes being transferred in violation of the Securities
Act or any other applicable securities law and (B) such amendment does not materially affect the
rights of Holders to transfer notes;



     (h) comply with any requirement of the SEC in connection with the qualification of this
Indenture under the TIA; or



     (i) convey, transfer, assign, mortgage or pledge as security for the notes any property or
assets in accordance with Section 4.10.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company
and the Subsidiary Guarantors in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.



     SECTION 9.02. With Consent of Holders of Notes.



     Except as provided below in this Section 9.02, this Indenture, the Subsidiary Guarantees and
the Notes of any series may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Notes of such series then outstanding voting as a single
class, and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes of such series, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this Indenture, the Subsidiary Guarantees
or the Notes of such series may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes of such series voting as a single class.



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



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



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



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



     (b) reduce the rate of or extend the time for payment of interest, including defaulted
interest, on any Note;



     (c) reduce the principal of or extend the Stated Maturity of any Note;



     (d) reduce the premium payable upon the redemption of any Note or change the time at which any
Note may be redeemed as set forth in Sections 3.07 and 3.08;



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



     (f) impair the right of any Holder of Notes to receive payment of principal of and interest on
such Note on or after the due dates therefore or to institute suit for the enforcement of such
payment on or with respect to such Holder’s Notes; or



     (g) make any change in the amendment provisions which require each Holder’s consent or in the
waiver provisions;



     (h) modify the Subsidiary Guarantees in any manner adverse to the Holders of the Notes.


SECTION 9.03. Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended
or supplemental indenture that complies with the TIA as then in effect.


SECTION 9.04. Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof
that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion thereof if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver shall
become effective in accordance with its terms and thereafter shall bind every Holder.


SECTION 9.05. Trustee to Sign Amendments.




     The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of



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the Trustee. None of the Company nor any Subsidiary Guarantor may sign an amendment or
supplemental indenture until its board of directors (or committee serving a similar function)
approves it. In executing any amended or supplemental indenture, the Trustee shall be provided
with and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amended or supplemental
indenture is the legal, valid and binding obligations of the Company enforceable against it in
accordance with its terms, subject to customary exceptions and that such amended or supplemental
indenture complies with the provisions hereof (including Section 9.03).




ARTICLE 10

SUBSIDIARY GUARANTEES




     To the extent that any provisions of this Article 10 are duplicative or conflict with any
provision of the Base Indenture, this Article 10 shall govern and be controlling solely with
respect to the Notes.


SECTION 10.01. Subsidiary Guarantees.




     Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of the Company under
this Indenture and the Notes and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Company under this Indenture and the Notes (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary
Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary
Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any
Guaranteed Obligation.



     Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each
Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure of
any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against
the Company or any other Person under this Indenture, the Notes 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 or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or
any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against
any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in
the ownership of such Subsidiary Guarantor.



     Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder or the Trustee to any security
held for payment of the Guaranteed Obligations.



     Each Subsidiary Guarantor further agrees that its Subsidiary 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 or interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.



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     Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be
accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section.



     Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under
this Section.


SECTION 10.02. Limitation on Liability.




     Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor
(a) not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
to the extent applicable to any Guarantee, and (b) not result in a distribution to shareholders not
permitted under the applicable state law. Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.


SECTION 10.03. Successors and Assigns.




     This Article 10 shall be binding upon each Subsidiary Guarantor and its successors and assigns
and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Notes shall automatically extend
to and be vested in such transferee or assignee, all subject to the terms and conditions of this
Indenture.


SECTION 10.04. No Waiver.




     Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Article 10 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or benefits which either
may have under this Article 10 at law, in equity, by statute or otherwise.


SECTION 10.05. Release of Subsidiary Guarantor.




     (a) Upon the sale (including any sale pursuant to any exercise of remedies by a holder of
Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition (including by way
of consolidation or merger) of a Subsidiary Guarantor; (b) upon the sale or disposition of all or
substantially all the assets of a Subsidiary Guarantor; (c) if a Subsidiary Guarantor no longer
guarantees or is otherwise obligated under (i) the Credit Agreement, (ii) Indebtedness under Credit
Facilities incurred in reliance on Section 4.07(b)(1) or (iii) any Material Capital Markets
Indebtedness; (d) upon designation of a Subsidiary Guarantor as an Unrestricted Subsidiary pursuant
to the terms of this Indenture; or (e) at the



77









 




Company’s election, during any Suspension Period, such Subsidiary Guarantor shall be deemed
released from all obligations under this Article 10 without any further action required on the part
of the Trustee or any Holder.




     If the Company exercises its Legal Defeasance option or its Covenant Defeasance option in
accordance with the provisions of Article 8 hereof or if its obligations under this Indenture are
discharged in accordance with Section 8.06 hereof, each Subsidiary Guarantor shall be released from
all obligations under this Article 10 without any further action required on the part of the
Trustee or any Holder. At the request of the Company, the Trustee shall execute and deliver an
appropriate instrument evidencing the release of a Subsidiary Guarantor pursuant to this Section
10.05.


SECTION 10.06. Contribution.




     Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee shall be
entitled upon payment in full of all Guaranteed Obligations to contribution from each Subsidiary
Guarantor, as applicable, in an amount equal to such Subsidiary Guarantor’s pro rata portion of
such payment based on the respective net assets of all the Subsidiary Guarantors at the time of
such payment determined in accordance with GAAP.



ARTICLE 11

MISCELLANEOUS




     To the extent that any provisions of this Article 11 are duplicative or conflict with any
provision of the Base Indenture, this Article 11 shall govern and be controlling solely with
respect to the Notes.


SECTION 11.01. Trust Indenture Act Controls




     If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required by the TIA shall
control.


SECTION 11.02. Notices




     Any notice or communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first class mail (registered or certified, return
receipt requested), facsimile or electronic transmission or overnight air courier guaranteeing
next-day delivery, to the other’s address:



          If to the Company:




          Lear Corporation

          21557 Telegraph Road

          Southfield, MI 48035

          Facsimile: (248) 447-5126

          Attention: General Counsel




78









 








          With a copy to:




          Winston & Strawn LLP

          35 West Wacker Drive

          Chicago, Illinois 60601

          Facsimile: (312) 558-5700

          Attention: Bruce A. Toth




79









 








          If to the Trustee:




          The Bank of New York Mellon Company, N.A.

          2 North La Salle Street, Suite 1020

          Chicago, Illinois 60602

          Facsimile: (312) 827-8542




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



     The Trustee agrees to accept and act upon facsimile transmission of written instructions
pursuant to this Indenture; provided, however, that (a) the party providing such written
instructions, subsequent to such transmission of written instructions, shall provide the originally
executed instructions in a timely manner and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party providing such instructions
or directions.



     All notices and communications (other than those sent to the Trustee or Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee or Holders shall be deemed duly given and effective only upon
receipt.



     Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to
its address shown on the security register for the Notes. Any notice or communication shall also
be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. 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 within the time
prescribed, it is duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.


SECTION 11.03. Communication by Holders of Notes with Other Holders of Notes.




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


SECTION 11.04. Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee:



     (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and



80









 





     (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been complied with.


SECTION 11.05. Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) shall comply
with the provisions of TIA §314(e) and shall include:



     (a) a statement that the Person making such certificate or opinion has read such covenant or
condition;



     (b) 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;



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



     (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.


SECTION 11.06. Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.


SECTION 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.




     No past, present or future director, officer, employee, incorporator or stockholder of the
Company, any Subsidiary Guarantor or the Trustee, as such, shall have any liability for any
obligations of the Company or of the Subsidiary Guarantors under the Notes, this Indenture, the
Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.


SECTION 11.08. Governing Law; Waiver of Jury Trial.




     THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



     EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY.



81









 




SECTION 11.09. No Adverse Interpretation of Other Agreements.




     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.


SECTION 11.10. Successors.




     All covenants and agreements of the Company in this Indenture and the Notes shall bind its
successors. All covenants and agreements of the Trustee in this Indenture shall bind its
successors.


SECTION 11.11. Severability.




     In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


SECTION 11.12. Counterpart Originals.




     The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.


SECTION 11.13. Table of Contents, Headings, etc.




     The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted
for convenience of reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.


SECTION 11.14. Force Majeure.




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



[Signatures on following page]









82









 





SIGNATURES




	 	 	 	 	 
	Dated as the date first written above



ISSUER:



Lear Corporation

 	 	 
	By:  	/s/ Matthew J. Simoncini
 	 	 
	Name:  	Matthew J. Simoncini 	 	 
	Title:  	Senior Vice President and

Chief Financial Officer 	 	 
	 
	SUBSIDIARY GUARANTORS:



Lear Argentine Holdings Corporation #2

Lear Automotive Dearborn, Inc.

Lear Corporation (Germany) Ltd.

Lear Corporation EEDS and Interiors

Lear Corporation Global Development, Inc.

Lear European Operations Corporation

Lear Mexican Holdings Corporation

Lear Mexican Seating Corporation

Lear Operations Corporation

Lear Seating Holdings Corp. #50

Lear South American Holdings Corporation

Renosol Seating, LLC

 	 	 
	By:  	/s/ Matthew J. Simoncini
 	 	 
	Name:  	Matthew J. Simoncini 	 	 
	Title:  	President 	 	 
	 
	Lear #50 Holdings, LLC

 	 	 
	By:  	/s/ Matthew J. Simoncini
 	 	 
	Name:  	Matthew J. Simoncini 	 	 
	Title:  	President of Lear South American

Holdings Corporation, Sole Member

of Lear #50 Holdings, LLC 	 	 
	 




 









 





	 	 	 	 	 
	Lear Automotive Manufacturing, LLC

Lear Investments Company, L.L.C.

 	 	 
	By:  	/s/ Shari L. Burgess
 	 	 
	Name:  	Shari L. Burgess 	 	 
	Title:  	Vice President and Treasurer 	 	 
	 
	Lear EEDS Holdings, LLC

 	 	 
	By:  	/s/ Matthew J. Simoncini
 	 	 
	Name:  	Matthew J. Simoncini 	 	 
	Title:  	President of Lear Argentine Holdings

Corporation #2, Sole Member of

Lear EEDS Holdings, LLC 	 	 
	 
	Lear Holdings, LLC

 	 	 
	By:  	/s/ Matthew J. Simoncini
 	 	 
	Name:  	Matthew J. Simoncini 	 	 
	Title:  	President of Lear Argentine Holdings

Corporation #2, Sole Member of

Lear Holdings, LLC 	 	 
	 
	Lear Mexican Holdings, L.L.C.

 	 	 
	By:  	/s/ Matthew J. Simoncini
 	 	 
	Name:  	Matthew J. Simoncini 	 	 
	Title:  	President of Lear Mexican Holdings

Corporation, Sole Member of

Lear Mexican Holdings, L.L.C. 	 	 
	 
	Lear Trim L.P.

 	 	 
	By:  	/s/ William P. McLaughlin
 	 	 
	Name:  	William P. McLaughlin 	 	 
	Title:  	Vice President of Lear Mexican Holdings

Corporation, General Partner of

Lear Trim L.P. 	 	 
	 




 









 





	 	 	 	 	 
	TRUSTEE:



The Bank of New York Mellon 

Trust Company, N.A.

 	 	 
	By:  	/s/ Lawrence M. Kusch
 	 	 
	Name:  	Lawrence M. Kusch 	 	 
	Title:  	Vice President