EX-4.2






Exhibit 4.2




INDENTURE




among




LEAR CORPORATION,




as Issuer,




THE GUARANTORS PARTY HERETO FROM TIME TO TIME,




as Guarantors,




and




                   
                   
               
        , 




as Trustee




Subordinated Securities




Dated as of                     , 200_




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	SECTION 1.01 Definitions
	 	 	1	 
	SECTION 1.02 Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	SECTION 1.03 Rules of Construction
	 	 	8	 
	ARTICLE II THE SECURITIES
	 	 	9	 
	SECTION 2.01 Unlimited in Amount, Issuable in Series, Form and Dating
	 	 	9	 
	SECTION 2.02 [RESERVED]
	 	 	11	 
	SECTION 2.03 Execution and Authentication
	 	 	11	 
	SECTION 2.04 Registrar and Paying Agent
	 	 	12	 
	SECTION 2.05 Paying Agent to Hold Assets in Trust
	 	 	12	 
	SECTION 2.06 Holder Lists
	 	 	13	 
	SECTION 2.07 General Provisions Relating to Transfer and Exchange
	 	 	13	 
	SECTION 2.08 Book-Entry Provisions for Global Securities
	 	 	14	 
	SECTION 2.09 [RESERVED]
	 	 	15	 
	SECTION 2.10 Replacement Securities
	 	 	15	 
	SECTION 2.11 Outstanding Securities
	 	 	16	 
	SECTION 2.12 Treasury Securities
	 	 	16	 
	SECTION 2.13 Temporary Securities
	 	 	16	 
	SECTION 2.14 Cancellation
	 	 	17	 
	SECTION 2.15 CUSIP Numbers
	 	 	17	 
	SECTION 2.16 Defaulted Interest
	 	 	17	 
	SECTION 2.17 Special Record Dates
	 	 	17	 
	SECTION 2.18 [RESERVED]
	 	 	17	 
	ARTICLE III REDEMPTION
	 	 	18	 
	SECTION 3.01 Notices to Trustee
	 	 	18	 
	SECTION 3.02 Selection of Securities to Be Redeemed
	 	 	18	 
	SECTION 3.03 Notice of Redemption
	 	 	18	 
	SECTION 3.04 Effect of Notice of Redemption
	 	 	19	 
	SECTION 3.05 Deposit of Redemption Price
	 	 	19	 
	SECTION 3.06 Securities Redeemed in Part
	 	 	19	 
	ARTICLE IV COVENANTS
	 	 	19	 
	SECTION 4.01 Payment of Securities
	 	 	19	 
	SECTION 4.02 Maintenance of Office or Agency
	 	 	20	 
	SECTION 4.03 Reports
	 	 	20	 
	SECTION 4.04 Compliance Certificate
	 	 	21	 
	SECTION 4.05 Taxes
	 	 	21	 
	SECTION 4.06 Corporate Existence
	 	 	21	 
	SECTION 4.07 Limitation on Liens
	 	 	21	 
	SECTION 4.08 Limitation on Sale and Lease-Back Transactions
	 	 	22	 
	ARTICLE V MERGER, ETC.
	 	 	23	 
	SECTION 5.01 When Company May Merge, etc.
	 	 	23	 
	SECTION 5.02 Successor Corporation Substituted
	 	 	23	 
	ARTICLE VI DEFAULTS AND REMEDIES
	 	 	23	 
	SECTION 6.01 Events of Default
	 	 	23	 
	SECTION 6.02 Acceleration
	 	 	25	 






i









 




TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page
	SECTION 6.03 Other Remedies
	 	 	25	 
	SECTION 6.04 Waiver of Past Defaults
	 	 	25	 
	SECTION 6.05 Control by Majority
	 	 	26	 
	SECTION 6.06 Limitation on Suits
	 	 	26	 
	SECTION 6.07 Rights of Holders To Receive Payment
	 	 	26	 
	SECTION 6.08 Collection Suit by Trustee
	 	 	27	 
	SECTION 6.09 Trustee May File Proofs of Claim
	 	 	27	 
	SECTION 6.10 Priorities
	 	 	27	 
	SECTION 6.11 Undertaking for Costs
	 	 	28	 
	SECTION 6.12 Stay, Extension and Usury Laws
	 	 	28	 
	ARTICLE VII TRUSTEE
	 	 	28	 
	SECTION 7.01 Duties of Trustee
	 	 	28	 
	SECTION 7.02 Rights of Trustee
	 	 	30	 
	SECTION 7.03 Individual Rights of Trustee
	 	 	31	 
	SECTION 7.04 Money Held in Trust
	 	 	31	 
	SECTION 7.05 Trustee’s Disclaimer
	 	 	31	 
	SECTION 7.06 Notice of Defaults
	 	 	31	 
	SECTION 7.07 Reports by Trustee to Holders
	 	 	31	 
	SECTION 7.08 Compensation and Indemnity
	 	 	31	 
	SECTION 7.09 Replacement of Trustee
	 	 	32	 
	SECTION 7.10 Successor Trustee by Merger, Etc.
	 	 	33	 
	SECTION 7.11 Eligibility; Disqualification
	 	 	33	 
	SECTION 7.12 Preferential Collection of Claims Against the Company
	 	 	33	 
	ARTICLE VIII DISCHARGE OF INDENTURE
	 	 	34	 
	SECTION 8.01 Satisfaction and Discharge of Indenture
	 	 	34	 
	SECTION 8.02 Application of Trust Funds; Indemnification
	 	 	35	 
	SECTION 8.03 Legal Defeasance
	 	 	35	 
	SECTION 8.04 Covenant Defeasance
	 	 	37	 
	SECTION 8.05 Repayment to Company
	 	 	38	 
	ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	38	 
	SECTION 9.01 Without Consent of Holders
	 	 	38	 
	SECTION 9.02 With Consent of Holders
	 	 	39	 
	SECTION 9.03 Compliance with Trust Indenture Act
	 	 	40	 
	SECTION 9.04 Revocation and Effect of Consents
	 	 	40	 
	SECTION 9.05 Notation on or Exchange of Securities
	 	 	40	 
	SECTION 9.06 Trustee to Sign Amendment, etc.
	 	 	41	 
	ARTICLE X SUBORDINATION
	 	 	41	 
	SECTION 10.01 Securities Subordinated to Senior Indebtedness
	 	 	41	 
	SECTION 10.02 Priority and Payment Over of Proceeds in Certain Events
	 	 	41	 
	SECTION 10.03 Payments May Be Paid Prior to Dissolution
	 	 	43	 
	SECTION 10.04 Rights of Holders of Senior Indebtedness Not to Be Impaired
	 	 	43	 
	SECTION 10.05 Authorization to Trustee to Take Action to Effectuate Subordination
	 	 	43	 
	SECTION 10.06 Distribution or Notice to Representative
	 	 	43	 
	SECTION 10.07 Subrogation
	 	 	43	 
	SECTION 10.08 Obligations of Company Unconditional
	 	 	44	 






ii









 




TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page
	SECTION 10.09 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice
	 	 	44	 
	SECTION 10.10 Right of Trustee to Hold Senior Indebtedness
	 	 	45	 
	ARTICLE XI GUARANTEES
	 	 	45	 
	SECTION 11.01 Guarantees
	 	 	45	 
	SECTION 11.02 Obligations of Guarantors Unconditional
	 	 	47	 
	SECTION 11.03 Subordination
	 	 	48	 
	SECTION 11.04 Limitation on Guarantors’ Liability
	 	 	48	 
	SECTION 11.05 Releases of Guarantees
	 	 	48	 
	SECTION 11.06 Application of Certain Terms and Provisions to Guarantors
	 	 	49	 
	SECTION 11.07 Additional Guarantors
	 	 	49	 
	ARTICLE XII MISCELLANEOUS
	 	 	50	 
	SECTION 12.01 Trust Indenture Act Controls
	 	 	50	 
	SECTION 12.02 Notices
	 	 	50	 
	SECTION 12.03 Communication by Holders with Other Holders
	 	 	50	 
	SECTION 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	51	 
	SECTION 12.05 Statements Required in Certificate or Opinion
	 	 	51	 
	SECTION 12.06 Rules by Trustee and Agents
	 	 	51	 
	SECTION 12.07 Legal Holidays
	 	 	51	 
	SECTION 12.08 Duplicate Originals
	 	 	52	 
	SECTION 12.09 Governing Law
	 	 	52	 
	SECTION 12.10 No Adverse Interpretation of Other Agreements
	 	 	52	 
	SECTION 12.11 Successors
	 	 	52	 
	SECTION 12.12 Severability
	 	 	52	 
	SECTION 12.13 Counterpart Originals
	 	 	52	 
	SECTION 12.14 Submission to Jurisdiction
	 	 	52	 
	SECTION 12.15 Waiver of Jury Trial
	 	 	52	 
	SECTION 12.16 Force Majeure
	 	 	53	 











iii









 











CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Trust Indenture	Indenture
	Act Section	Section
	310
	(a)(1)	 	7.11	 
	
	(a)(2)	 	7.11	 
	
	(a)(3)	 	n/a	 
	
	(a)(4)	 	n/a	 
	
	(a)(5)	 	7.11	 
	
	(b)	 	7.03; 7.11	 
	
	(c)	 	n/a	 
	311
	(a)	 	7.12	 
	
	(b)	 	7.12	 
	
	(c)	 	n/a	 
	312
	(a)	 	2.06	 
	
	(b)	 	11.03	 
	
	(c)	 	11.03	 
	313
	(a)	 	7.07	 
	
	(b)(1)	 	n/a	 
	
	(b)(2)	 	   7.07; 7.08	 
	
	(c)	 	 7.07; 11.02	 
	
	(d)	 	7.07	 
	314
	(a)(1), (2), (3)	 	4.03;11.05	 
	
	(a)(4)	 	4.04	 
	
	(b)	 	n/a	 
	
	(c)(1)	 	11.04	 
	
	(c)(2)	 	11.04	 
	
	(c)(3)	 	n/a	 
	
	(d)	 	n/a	 
	
	(e)	 	11.05	 
	
	(f)	 	n/a	 
	315
	(a)	 	7.01(b)	
	
	(b)	 	7.06; 11.02	 
	
	(c)	 	7.01(a)	
	
	(d)	 	7.01(c)	
	
	(e)	 	6.11	 
	316
	(a)(last sentence)	 	2.12	 
	
	(a)(1)(A)	 	6.05	 
	
	(a)(1)(B)	 	6.04	 
	
	(a)(2)	 	n/a	 
	
	(b)	 	6.07	 
	
	(c)	 	9.04	 
	317
	(a)(1)	 	6.08	 
	
	(a)(2)	 	6.09	 
	
	(b)	 	2.04	 
	318
	(a)	 	11.01	 
	
	(b)	 	n/a	 
	
	(c)	 	11.01	 








 




			
	“n/a” means not applicable.
	 
	*	 	This Cross–Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.





iv









 





     Indenture, dated as of                                         , 200_, among Lear Corporation, a Delaware corporation (the
“Company”), as issuer, the companies listed on the signature pages hereto that are subsidiaries of
the Company (the “Guarantors”), and                                         , a                                  
       , as trustee (the “Trustee”).



RECITALS OF THE COMPANY AND THE GUARANTORS




     The Company has duly authorized the execution and delivery of this indenture to provide for
the issuance from time to time of its debentures, notes or other evidences of indebtedness to be
issued in one or more series (the “Securities”), as herein defined and provided, up to such
principal amount as may from time to time be authorized in or pursuant to one or more resolutions
of the Board of Directors or by supplemental indenture.



     The Guarantors have duly authorized the execution and delivery of this Indenture to provide
guarantees of the Securities and of certain of the obligations of the Company hereunder.



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed for the equal and ratable benefit of the Holders of
the Securities, as follows:



ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




     SECTION 1.01 Definitions.



     “2013 and 2016 Note Indenture” means the Indenture, dated as of November 24, 2006, by and
among Lear, the guarantors named therein and The Bank of New York Trust Company, N.A., as trustee,
and as may be amended, modified or supplemented from time to time.



     “2013 Notes” means the 8.50% Senior Notes due 2013 issued pursuant to the 2013 and 2016 Note
Indenture.



     “2014 Notes” means the 5.75% Senior Notes due 2014 issued pursuant to the 2014 Note Indenture.



     “2014 Note Indenture” means the Indenture, dated as of August 3, 2004, by and among Lear, the
guarantors named therein and The Bank of New York Trust Company, N.A., as trustee, as amended by
Supplemental Indenture No. 1 to the 2014 Note Indenture, dated as of December 15, 2005, by and
among Lear, the guarantors named therein and The Bank of New York Trust Company, N.A., as trustee,
Supplemental Indenture No. 2 to the 2014 Note Indenture, dated as of April 15, 2006, by and among
Lear, the guarantors named therein and The Bank of New York Trust Company, N.A., as trustee and as
may be further amended, modified or supplemented from time to time.



 









 





     “2016 Notes” means the 8.75% Senior Notes due 2016 issued pursuant to the 2013 and 2016 Note
Indenture.



     “Affiliate” means, when used with reference to the Company or another Person, any Person
directly or indirectly controlling, controlled by, or under direct or indirect common control with,
the Company or such other Person, as the case may be. For the purposes of this definition,
“control” when used with respect to any specified Person means the power to direct or cause the
direction of management or 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 of the foregoing.



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



     “Attributable Value” means, in connection with a sale and lease-back transaction, the lesser
of (i) the fair market value of the assets subject to such transaction and (ii) the present value
(discounted at a rate per annum equal to the rate of interest implicit in the lease involved in
such sale and lease-back transaction, as determined in good faith by the Company) of the
obligations of the lessee for rental payments during the term of the related lease.



     “Bankruptcy Law” means Title 11 of the U.S. Code or any similar federal or state law for the
relief of debtors.



     “Board of Directors” means, with respect to any Person, the Board of Directors of such Person
or any duly authorized committee of such Board of Directors.



     “Board Resolution” means a copy of a resolution certified by the secretary or an assistant
secretary of such Person to have been duly adopted by the Board of Directors of such Person or any
duly authorized committee thereof and to be in full force and effect on the date of such
certification, and delivered to the Trustee.



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



     “Company” means the party named as the Company in the first paragraph of this Indenture until
one or more successor corporations shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter means such successors.



     “Consolidated” or “consolidated” means, when used with reference to any amount, such amount
determined on a consolidated basis in accordance with GAAP, after the elimination of intercompany
items.



     “Consolidated Assets” means at a particular date, all amounts which would be included under
total assets on a consolidated balance sheet of the Company and its Restricted Subsidiaries as at
such date, determined in accordance with GAAP.



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



2









 





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



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



     “Depositary” means The Depository Trust Company, its nominees and their respective successors.



     “DTC Participants” has the meaning specified in Section 2.08.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.



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



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute.



     “Existing Senior Notes” means the 2013 Notes, the 2014 Notes and the 2016 Notes.



     “Financing Lease” means (i) any lease of property, real or personal, the obligations under
which are capitalized on a consolidated balance sheet of the Company and its Restricted
Subsidiaries and (ii) any other such lease to the extent that the then present value of the minimum
rental commitment thereunder should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are applicable from time to time.



     “Global Securities” means a Security issued to evidence all or a part of any series of
Securities that is executed by the Company and authenticated and delivered by the Trustee to a
depositary or pursuant to such depositary’s instructions, all in accordance with this Indenture and
pursuant to Section 2.01, which shall be registered as to principal and interest in the name of
such depositary or its nominee.



     “Guarantee” means the guarantee of the Securities by each Guarantor under Article XI hereof.



     “Guarantor” means (i) each of the Subsidiaries of the Company which have executed this
Indenture as a Guarantor as of the date hereof, and (ii) each of the Company’s Subsidiaries,
whether formed, created or acquired before or after the date hereof, which become a guarantor of
Securities pursuant to the provisions of this Indenture.



3









 





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



     “Indebtedness” of a Person means all obligations which would be treated as liabilities upon a
balance sheet of such Person prepared on a consolidated basis in accordance with GAAP.



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



     “Issue Date” means the date of original issuance of the initial Securities pursuant to this
Indenture.



     “Legal Holiday” has the meaning specified in Section 11.07.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement or any Financing Lease having substantially the
same economic effect as any of the foregoing).



     “Obligations” means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.



     “Officer” of any Person means the Chairman of the Board, Vice Chairman, the Chief Executive
Officer, the President, any Senior Vice President, any Executive Vice President, any Vice
President, the Treasurer, the Secretary or the Controller of such Person.



     “Officers’ Certificate” means a certificate signed by two Officers or by an Officer and an
Assistant Treasurer, Assistant Secretary or Assistant Controller of any Person.



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



     “Paying Agent” has the meaning specified in Section 2.04.



     “Permitted Liens” means:




     (i) Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings;




     (ii) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen,
repairmen, suppliers or other like Liens arising in the ordinary course of business;




     (iii) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation, including any Lien securing letters of
credit issued in the ordinary course of business in connection therewith and
deposits securing liabilities to insurance carriers under insurance and self-insurance
programs;



4









 






     (iv) Liens (other than any Lien imposed by ERISA) incurred on deposits to secure the
performance of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds, letters of credit for customs
purposes, workers’ compensation, unemployment insurance, utility payments and other
obligations of a like nature incurred in the ordinary course of business;




     (v) easements, rights-of-way, restrictions and other similar encumbrances incurred
which, in the aggregate, do not materially interfere with the ordinary conduct of the
business of the Company and its Restricted Subsidiaries taken as a whole;




     (vi) attachment, judgment or other similar Liens arising in connection with court or
arbitration proceedings, provided that the same are discharged, or that execution or
enforcement thereof is stayed pending appeal, within 60 days or, in the case of any stay of
execution or enforcement pending appeal, within such lesser time during which such appeal
may be taken;




     (vii) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements entered into in
the ordinary course of business;




     (viii) statutory Liens and rights of offset arising in the ordinary course of business
of the Company and its Restricted Subsidiaries;




     (ix) Liens in connection with leases or subleases granted to others and the interest or
title of a lessor or sublessor (other than the Company or any of its Subsidiaries) under any
lease;




     (x) Liens securing Indebtedness in respect of interest rate agreement obligations or
currency agreement obligations or commodity hedging agreements entered into to protect
against fluctuations in interest rates or exchange rates or commodity prices and not for
speculative reasons; and




     (xi) Liens existing on the date hereof.



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



     “Physical Securities” means permanent certificated Securities in registered form, issued in
accordance with Section 2.08 and the terms of any indenture supplemental hereto.



     “Receivable Financing Transaction” means any transaction or series of transactions involving a
sale for cash of accounts receivable, without recourse based upon the collectibility of the
receivables sold, by the Company or any of its Restricted Subsidiaries to a Special Purpose
Subsidiary and a subsequent sale or pledge of such accounts receivable (or an interest therein) by



5









 







such Special Purpose Subsidiary, in each case without any guarantee by the Company or any of
its Restricted Subsidiaries (other than the Special Purpose Subsidiary).



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



     “Redemption Price” means the redemption price fixed in accordance with the terms of the
Securities, plus accrued and unpaid interest, if any, to the date fixed for redemption.



     “Register” has the meaning specified in Section 2.04.



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



     “Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.



     “SEC” means the Securities and Exchange Commission and any government agency succeeding to its
functions.



     “Securities” means the securities authenticated and delivered under this Indenture.



     “Securities Act” means the Securities Act of 1933, as amended, or any successor statute.



     “Senior Credit Facilities” means the Amended and Restated Credit and Guarantee Agreement dated
as of April 25, 2006 by and among the Company, Lear Canada, each Foreign Subsidiary Borrower (as
defined therein), the lenders party thereto in their capacities as lenders thereunder and the
agents party thereto in their capacities as such, together with the related documents thereto
(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 or
otherwise modified from time to time, including one or more credit agreements, loan agreements,
indentures or similar agreements extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings thereunder or adding
Restricted Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any
portion of the indebtedness under such agreement or agreements or any successor or replacement
agreement or agreements and whether by the same or any other agent, lender or group of lenders.



     “Senior Indebtedness” means all Indebtedness (present or future) created, incurred, assumed or
guaranteed by the Company (and all renewals, extensions or refundings thereof), unless the
instrument under which such Indebtedness is created, incurred, assumed or guaranteed provides that
such Indebtedness is not senior or superior in right of payment to the Securities. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness shall not include (i) any
Indebtedness of the Company to any of its Subsidiaries, (ii) any trade payables of the
Company or (iii) any liability for federal, state, local or other taxes owed or owing by the
Company.



6









 





     “Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”
within the meaning of Article 1 of Regulation S-X of the Securities Act as in effect on the date of
this Indenture.



     “Special Purpose Subsidiary” means any wholly owned Restricted Subsidiary of the Company
created by the Company for the sole purpose of facilitating a Receivable Financing Transaction. In
the event the laws of a jurisdiction in which the Company proposes to create a Special Purpose
Subsidiary do not provide for the creation of an entity that is bankruptcy-remote in a manner that
is acceptable to the Company or requires the formation of one or more additional entities (whether
or not subsidiaries of the Company) such other type of entity or entities may serve as a Special
Purpose Subsidiary.



     “Subordinated Indebtedness” means the Securities and any other Indebtedness that is
subordinate or junior in right of payment to Senior Indebtedness.



     “Subsidiary” of any Person means:




     (i) a corporation a majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned by such
Person or by such Person and a subsidiary or subsidiaries of such Person or by a subsidiary
or subsidiaries of such Person; or




     (ii) any other Person (other than a corporation) in which such Person or such Person
and a subsidiary or subsidiaries of such Person or a subsidiary or subsidiaries of such
Persons, at the time, directly or indirectly, owns at least a majority voting interest under
ordinary circumstances.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb), as in effect
on the date of this Indenture; provided, however, that in the event the TIA is amended after such
date, “TIA” means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so
amended, or any successor statute.



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



     “Unrestricted Subsidiary” means any Subsidiary designated as such by the Board of Directors of
the Company; provided, however, that at the time of any such designation by the Board of Directors,
such Subsidiary does not constitute a Significant Subsidiary; and provided, further, that at the
time that any Unrestricted Subsidiary becomes a Significant Subsidiary it shall cease to be an
Unrestricted Subsidiary.



     “U.S. Government Obligations” means (i) direct obligations of the United States of America for
the payment of which the full faith and credit of the United States of America is pledged or (ii)
obligations of a person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally



7









 







guaranteed as a full faith and credit obligation by the United States of America and which in
either case, are non-callable at the option of the issuer thereof.



     SECTION 1.02 Incorporation by Reference of Trust Indenture Act.



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



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



     “indenture securities” means the Securities;



     “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 Securities means the Company and any other obligor on the indenture
securities.



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



     SECTION 1.03 Rules of Construction.



     Unless the context otherwise requires:




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




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




     (iii) “or” is not exclusive;




     (iv) “including” means including without limitation;




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




     (vi) provisions apply to successive events and transactions.



8









 





ARTICLE II




THE SECURITIES




     SECTION 2.01 Unlimited in Amount, Issuable in Series, Form and Dating.



     The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series. There shall be
established pursuant to a Board Resolution or an Officers’ Certificate pursuant to authority
granted under a Board Resolution or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:



     (a) The title, ranking and authorized denominations of such Securities;



     (b) The aggregate principal amount of such Securities and any limit on such aggregate
principal amount;



     (c) The price (expressed as a percentage of the principal amount thereof) at which such
Securities will be issued and, if other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the maturity thereof;



     (d) The date or dates, or the method for determining such date or dates, on which the
principal of such Securities will be payable;



     (e) The rate or rates (which may be fixed or variable), or the method by which such rate or
rates shall be determined, at which such Securities will bear interest, if any;



     (f) The date or dates, or the method for determining such date or dates, from which any such
interest will accrue, the dates on which any such interest will be payable, the record dates for
such interest payment dates, or the method by which such dates shall be determined, the persons to
whom such interest shall be payable, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;



     (g) The place or places where the principal of and interest, if any, on such Securities will
be payable, where such Securities may be surrendered for registration of transfer or exchange and
where notices or demands to or upon the Company in respect of such Securities and this Indenture
may be served;



     (h) The period or periods, if any, within which, the price or prices at which and the other
terms and conditions upon which such Securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed, as a whole or in part, at the option of the Company;



     (i) The obligation, if any, of the Company to redeem, repay or purchase such Securities
pursuant to any sinking fund or analogous provision or at the option of a holder thereof, and the
period or periods within which, the price or prices at which and the other terms and conditions
upon which such Securities will be redeemed, repaid or purchased, as a whole or in part, pursuant
to such obligation;



     (j) If other than U.S. dollars, the currency or currencies in which such Securities are
denominated and payable, which may be a foreign currency or units of two or more foreign currencies
or a composite currency or currencies, and the terms and conditions relating thereto;



     (k) Whether the amount of payments of principal of (and premium, if any) or interest, if any,
on such Securities may be determined with reference to an index, formula or other method



9









 




(which index, formula or method may, but need not be, based on the yield on or trading price
of other securities, including United States Treasury securities, or on a currency, currencies,
currency unit or units, or composite currency or currencies) and the manner in which such amounts
shall be determined;




     (l) Whether the principal of or interest on the Securities of the series is to be payable, at
the election of the Company or a holder thereof, in a currency or currencies, currency unit or
units or composite currency or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the terms and conditions upon
which, such election may be made, and the time and manner of, and identity of the exchange rate
agent with responsibility for, determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which such Securities are denominated
or stated to be payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;



     (m) Provisions, if any, granting special rights to the holders of Securities of the series
upon the occurrence of such events as may be specified;



     (n) Any deletions from, modifications of or additions to the Events of Default or covenants of
the Company with respect to Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants described herein;



     (o) Whether and under what circumstances the Company will pay any additional amounts on such
Securities in respect of any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities in lieu of making such payment;



     (p) Whether Securities of the series are to be issuable as registered securities, bearer
securities (with or without coupons) or both, any restrictions applicable to the offer, sale or
delivery of bearer securities and the terms upon which bearer securities of the series may be
exchanged for registered securities of the series and vice versa (if permitted by applicable laws
and regulations), whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, whether beneficial owners of interests in any such permanent
Global Security may exchange such interests for Securities of such series and of like tenor or any
authorized form and denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in the indenture, and, if registered securities of the series are
to be issuable as a Global Security, the identity of the depositary for such series;



     (q) The date as of which any bearer securities of the series and any temporary Global Security
representing outstanding Securities of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;



     (r) The person to whom any interest on any registered security of the series shall be payable,
if other than the person in whose name that Security (or one or more predecessor securities) is
registered at the close of business on the regular record date for such interest, the manner in
which, or the person to whom, any interest on any bearer security of the series shall be



10









 







payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto
as they severally mature, and the extent to which, or the manner in which, any interest payable on
a temporary Global Security on an interest payment date will be paid if other than in the manner
provided in the indenture;



     (s) Whether such Securities will be issued in certificated or book entry form;



     (t) The applicability, if any, of the legal defeasance and covenant defeasance provisions of
the indenture to the Securities of the series;



     (u) If the Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, then the form and/or
terms of such certificates, documents or conditions;



     (v) Whether the Securities will be listed for trading on an exchange and the identity of such
exchange;



     (w) Whether any underwriters will act as market makers for the Securities;



     (x) Any guarantees of such Securities by the Guarantors or other Subsidiaries of the Company
or others;



     (y) Any conversion or exchange features applicable to the Securities; and



     (z) Any other terms of the series.



     SECTION 2.02 [RESERVED].



     SECTION 2.03 Execution and Authentication.



     Two Officers shall sign the Securities for the Company by manual or facsimile signature. If
an Officer whose signature is on a Security no longer holds that office at the time the Security is
authenticated, the Security shall be valid nevertheless.



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



     The Trustee shall, upon a written order of the Company signed by one Officer of the Company,
authenticate for original issue Securities in aggregate principal amount specified in such order.



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



11









 





     SECTION 2.04 Registrar and Paying Agent.



     The Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities
may be presented for payment (the “Paying Agent”). The Registrar shall keep a register of the
Securities (the “Register”) and of their transfer and exchange. The Company may appoint one or
more co-Registrars and one or more additional Paying Agents for the Securities. The term “Paying
Agent” includes any additional paying agent and the term “Registrar” includes any additional
registrar. The Company may change any Paying Agent or Registrar without prior notice to any
Holder.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which shall incorporate the terms of the TIA and implement the terms of this
Indenture that relate to such Agent. The Company shall give prompt written notice to the Trustee
of the name and address of any Agent who is 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 Affiliate of the Company may act as Paying Agent or Registrar; provided,
however, that none of the Company, its Subsidiaries or the Affiliates of the foregoing shall act
(i) as Paying Agent in connection with redemptions, offers to purchase, discharges and defeasance,
as otherwise specified in this Indenture, and (ii) as Paying Agent or Registrar if a Default or
Event of Default has occurred and is continuing.



     The Company initially appoints The Depository Trust Company to act as Depositary with respect
to the Global Securities.



     The Company hereby initially appoints the Trustee as Registrar and Paying Agent for the
Securities.



     SECTION 2.05 Paying Agent to Hold Assets in Trust.



     Not later than 11:00 a.m. (New York City time) on each due date of the principal and interest
on any Securities, the Company shall deposit with one or more Paying Agents money in immediately
available funds sufficient to pay such principal and interest so becoming due. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of and interest on the Securities (whether such money has been paid to it by
the Company or any other obligor on the Securities, including any Guarantor) and shall notify the
Trustee of any failure by the Company (or any other obligor on the Securities, including any
Guarantor) in making any such payment. While any such failure continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed.
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 of
the Company) shall have no further liability for the money so paid over to the Trustee.



     If the Company or any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it shall, prior to or on each due date of any principal of or interest on the Securities,



12









 







segregate and hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient with monies held by all other Paying Agents, to pay such principal or interest so
becoming due until such sum of money shall be paid to such Holders or otherwise disposed of as
provided in this Indenture, and will promptly notify the Trustee of its actions or failure to act.



     SECTION 2.06 Holder Lists.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with Section
312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee
prior to or on each interest payment date for the Securities and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders relating to such interest payment date or request, as
the case may be.



     SECTION 2.07 General Provisions Relating to Transfer and Exchange.



     The Securities are issuable only in registered form. A Holder may transfer a Security only by
written application to the Registrar or another transfer agent stating the name of the proposed
transferee and otherwise complying with the terms of this Indenture. No such transfer shall be
effected until, and such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Holder as provided herein, the Company, the Trustee, and any
agent of the Company shall treat the person in whose name the Security is registered as the owner
thereof for all purposes whether or not the Security shall be overdue, and neither the Company, the
Trustee, nor any such agent shall be affected by notice to the contrary. Furthermore, any Holder
of a Global Security shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent) and that ownership of a beneficial
interest in the Security shall be required to be reflected in a book-entry.



     When Securities are presented to the Registrar or another transfer agent with a request to
register the transfer or to exchange them for an equal principal amount of Securities of other
authorized denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met (including that such Securities are
duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the Holder). Subject to
Section 2.03, to permit registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made
for any registration of transfer or exchange or redemption of the Securities, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or other similar governmental
charge payable upon exchanges pursuant to Section 2.13, 3.06 or 9.05 hereof).



13









 





     Neither the Registrar nor any other transfer agent nor the Company shall be required to:




     (i) issue, register the transfer of or exchange any Security during a period beginning
at the opening of business 15 Business Days before the day of any selection of Securities
for redemption under Section 3.02 hereof and ending at the close of business on the day of
selection; or




     (ii) register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed in part.



     Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holder’s Security in
violation of any provision of this Indenture and/or applicable United States Federal or state
securities law.



     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 Security (including any transfers between or among DTC
Participants or beneficial owners of interests in any Global Security) 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 2.08 Book-Entry Provisions for Global Securities.



     (a) The Global Securities initially shall:




     (i) be registered in the name of the Depositary or the nominee of such Depositary; and




     (ii) be delivered to the Trustee as custodian for such Depositary.



     Members of, or participants in, the Depositary (“DTC Participants”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee as its custodian, or under such Global Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained
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 the DTC Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any Security.



     (b) Transfers of a Global Security shall be limited to transfers of such Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees. Beneficial
owners may transfer their interests in Global Securities in accordance with the rules and
procedures of the Depositary.



     (c) Any beneficial interest in one of the Global Securities that is transferred to a person
who takes delivery in the form of an interest in another Global Security will, upon transfer, cease
to be an interest in such Global Security and become an interest in such other Global Security and,



14









 







accordingly, will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Security for as long as it
remains such an interest.



     (d) The registered Holder of a Global Security may grant proxies and otherwise authorize any
Person, including DTC Participants and Persons that may hold interests through DTC Participants, to
take any action that a Holder is entitled to take under this Indenture or the Securities.



     (e) If at any time:




     (i) the Company notifies the Trustee in writing that the Depositary is no longer
willing or able to continue to act as Depositary for the Global Securities or the Depositary
ceases to be a “clearing agency” registered under the Exchange Act, and a successor
depositary for the Global Securities is not appointed by the Company within 90 days of such
notice or cessation;




     (ii) the Company, at its option, notifies the Trustee in writing that it elects to
cause the issuance of the Securities in definitive form under this Indenture in exchange for
all or any part of the Securities represented by a Global Security or Global Securities; or




     (iii) an Event of Default has occurred and is continuing and the Registrar has received
a request from the Depositary,


subject to this Section 2.08(e), the Depositary shall surrender such Global Security or Global
Securities to the Trustee for cancellation and then the Company shall execute, and the Trustee
shall authenticate and deliver in exchange for such Global Security or Global Securities, Physical
Securities, as applicable, in an aggregate principal amount equal to the principal amount of such
Global Security or Global Securities. Such Physical Securities shall be registered in such names
as the Depositary shall identify in writing as the beneficial owners, or participant nominees, of
the Securities represented by such Global Security or Securities (or any nominee thereof).




     (f) Notwithstanding the foregoing, in connection with any transfer of a portion of the
beneficial interests in a Global Security to beneficial owners pursuant to paragraph (e) of this
Section 2.08, the Registrar shall reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal amount of the
beneficial interest in such Global Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and
amount.



     SECTION 2.09 [RESERVED].



     SECTION 2.10 Replacement Securities.



     If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the requirements of the Trustee and the
Company are met; provided that, if any such Security has been called for redemption in



15









 




accordance with the terms thereof, the Trustee may pay the Redemption Price thereof on the
Redemption Date without authenticating or replacing such Security. The Trustee or the Company may,
in either case, require the Holder to provide an indemnity bond sufficient in the judgment of each
of the Trustee and the Company to protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced or if the Redemption Price therefor is paid
pursuant to this Section 2.10. The Company may charge the Holder who has lost a Security for its
expenses in replacing a Security.




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



     SECTION 2.11 Outstanding Securities.



     The Securities outstanding at any time are all the Securities authenticated by the Trustee,
except for (i) those cancelled by it, (ii) those delivered to it for cancellation and (iii) those
described in this Section as not outstanding.



     If a Security is replaced pursuant to Section 2.10 hereof, it ceases to be outstanding and
interest ceases to accrue unless the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser.



     If all principal of and interest on any Security are considered paid under Section 4.01
hereof, such Security ceases to be outstanding and interest on it ceases to accrue.



     Except as provided in Section 2.12 hereof, a Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds such Security.



     SECTION 2.12 Treasury Securities.



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



     SECTION 2.13 Temporary Securities.



     Until definitive Securities are ready for delivery, the Company may prepare and execute, and
the Trustee shall authenticate upon a written order of the Company signed by one Officer of the
Company, temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare, and the Trustee shall
authenticate, definitive Securities in exchange for temporary Securities. Holders of temporary
Securities shall be entitled to all of the benefits of this Indenture.



16









 





     SECTION 2.14 Cancellation.



     The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, payment or repurchase. The Trustee shall cancel all Securities surrendered
for registration of transfer, exchange, payment, repurchase, redemption, replacement or
cancellation and shall return such cancelled Securities to the Company upon the Company’s written
request (subject to the record retention requirements of the Exchange Act). The Company may not
issue new Securities to replace Securities that it has paid or that have been delivered to the
Trustee for cancellation.



     SECTION 2.15 CUSIP Numbers.



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



     SECTION 2.16 Defaulted Interest.



     If the Company fails to make a payment of interest on Securities, it shall pay such defaulted
interest plus (to the extent lawful) any interest payable on the defaulted interest, in any lawful
manner. It may elect to pay such defaulted interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a subsequent special
record date. The Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each such Security. The Company shall fix any such record date and payment
date for such payment. At least 15 days before any such record date, the Company shall mail to
Holders affected thereby a notice that states the record date, interest payment date, and amount of
such interest to be paid.



     SECTION 2.17 Special Record Dates.



     The Company may, but shall not be obligated to, set a record date for the purpose of
determining the identity of Holders of Securities entitled to consent to any supplement, amendment
or waiver permitted by this Indenture. If a record date is fixed, the Holders of Securities
outstanding on such record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the principal amount of Securities
required hereunder for such amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.



     SECTION 2.18 [RESERVED].



17









 





ARTICLE III




REDEMPTION




     SECTION 3.01 Notices to Trustee.



     If the Company elects to redeem any series of Securities pursuant to the optional redemption
provisions thereof, it shall notify the Trustee in writing of the intended Redemption Date, the
principal amount of Securities to be redeemed and the CUSIP numbers of the Securities to be
redeemed.



     The Company shall give each notice provided for in this Section 3.01 and an Officers’
Certificate at least 5 days before the giving of the notice of redemption (unless a shorter period
shall be satisfactory to the Trustee).



     SECTION 3.02 Selection of Securities to Be Redeemed.



     If fewer than all the Securities of any series are to be redeemed, the Trustee shall select
the Securities of such series to be redeemed from the outstanding Securities of such series by a
method that complies with the requirements of any exchange on which the Securities are listed, or,
if the Securities are not listed on an exchange, on a pro rata basis or by lot or in accordance
with any other method the Trustee considers fair and appropriate.



     Securities and portions thereof of any series that the Trustee selects shall be in amounts
equal to the minimum authorized denomination for Securities to be redeemed or any integral multiple
thereof. Provisions of this Indenture that apply to Securities of any series called for redemption
also apply to portions of Securities of such series called for redemption. The Trustee shall
notify the Company promptly in writing of the Securities or portions of Securities of any series to
be called for redemption.



     SECTION 3.03 Notice of Redemption.



     At least 30 days but not more than 60 days before the Redemption Date, the Company shall mail
a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed at
the address of such Holder appearing in the Register.



     The notice shall identify the Securities to be redeemed and shall state:




     (i) the Redemption Date;




     (ii) the method being used to determine the Redemption Price;




     (iii) if fewer than all outstanding Securities are to be redeemed, the portion of the
principal amount of the Securities to be redeemed and that, after the Redemption Date, upon
surrender of such Security, a new Security in principal amount equal to the unredeemed
portion will be issued;




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



18









 






     (v) that Securities called for redemption must be presented and surrendered to the
Paying Agent to collect the Redemption Price;




     (vi) that, unless the Company defaults in payment of the Redemption Price, interest on
Securities called for redemption ceases to accrue interest on and after the Redemption Date;
and




     (vii) the CUSIP numbers, if any, of the Securities to be redeemed.



     At the Company’s written request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the Holder of any
Securities shall not affect the validity of the proceeding for the redemption of any other
Securities.



     SECTION 3.04 Effect of Notice of Redemption.



     Once the notice of redemption is mailed, Securities called for redemption become irrevocably
due and payable on the Redemption Date at the Redemption Price. Upon surrender to the Paying
Agent, such Securities shall be paid at the Redemption Price.



     SECTION 3.05 Deposit of Redemption Price.



     Prior to 11:00 a.m., New York City time, on the Redemption Date, the Company shall deposit
with the Trustee or with the Paying Agent (or, if the Company or an Affiliate of the Company is
acting as the paying Agent, shall segregate and hold in trust) an amount of money sufficient to pay
the Redemption Price of all Securities to be redeemed on that date. The Paying Agent shall
promptly return to the Company any amount of money not required for that purpose.



     SECTION 3.06 Securities Redeemed in Part.



     Upon surrender of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder at the expense of the Company, a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.



ARTICLE IV




COVENANTS




     SECTION 4.01 Payment of Securities.



     The Company shall pay, or cause to be paid, the principal of and interest on the Securities on
the dates and in the manner provided in this Indenture and the Securities. Principal and interest
shall be considered paid on the date due if the Paying Agent, if other than the Company, a
Subsidiary of the Company or any Affiliate of any of them, holds as of 11:00 a.m. (New York City
time) on that date immediately available funds designated for and sufficient to pay all principal
and interest then due. If the Company or any Subsidiary of the Company or any Affiliate of any of



19









 







them acts as Paying Agent, principal or interest shall be considered paid on the due date if
the entity acting as Paying Agent complies with the second paragraph of Section 2.05 hereof.



     The Company shall pay interest on overdue principal and premium, and interest on overdue
installments of interest, to the extent lawful, at the rate per annum specified therefor in the
Securities.



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



     SECTION 4.02 Maintenance of Office or Agency.



     The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee or Registrar) where
the Securities may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities 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 fails to maintain any such required
office or agency or fails to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



     The Company hereby designates the New York office of the Trustee located at
                                        , as one such office or agency of the Company in accordance with Section 2.04
hereof.



     SECTION 4.03 Reports.



     (a) The Company shall deliver to the Trustee within 15 days after it files them with the SEC
copies of the annual reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
provided, however, the Company shall not be required to deliver to the Trustee any materials for
which the Company has sought and received confidential treatment by the SEC. The Company also
shall comply with the other provisions of Section 314(a) of the TIA.



     (b) Delivery of reports, information and documents to the Trustee pursuant to this Section
4.03 is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from



20









 







information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).



     SECTION 4.04 Compliance Certificate.



     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company, an Officers’ Certificate, one of the signers of which is the chief executive officer,
vice chairman, the chief financial officer, executive vice president or the chief accounting
officer of the Company, stating that in the course of the performance by the signers of their
duties as officers of the Company, they would normally have knowledge of any failure by the Company
to comply with all conditions, or Default by the Company with respect to any covenants, under this
Indenture, and further stating whether or not they have knowledge of any such failure or Default
and, if so, specifying each such failure or Default and the nature thereof. For purposes of this
Section, such compliance shall be determined without regard to any period of grace or requirement
of notice provided for in this Indenture. The certificate need not comply with Section 11.04
hereof.



     SECTION 4.05 Taxes.



     The Company shall pay prior to delinquency, all material taxes, assessments, and governmental
levies except as contested in good faith by appropriate proceedings.



     SECTION 4.06 Corporate Existence.



     Subject to Article V hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence and (ii) the material rights
(charter and statutory), licenses and franchises of the Company and its Subsidiaries taken as a
whole; provided, however, that the Company shall not be required to preserve any such right,
license or franchise if the Board of Directors or management of the Company determines that the
preservation thereof is no longer in the best interests of the Company, and that the loss thereof
is not adverse in any material respect to the Holders.



     SECTION 4.07 Limitation on Liens.



     The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, create,
incur, assume or permit to exist any Lien on any of their respective properties or assets, whether
now owned or hereafter acquired, or upon any income or profits therefrom, without effectively
providing that the Securities shall be equally and ratably secured until such time as such
Indebtedness is no longer secured by such Lien, except:




     (i) Permitted Liens;




     (ii) Liens securing obligations under the Senior Credit Facilities in an amount not to
exceed $3.0 billion at any one time outstanding less the amount of Liens outstanding under
clause (iii) below;




     (iii) Liens securing the 2014 Notes;



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     (iv) Liens on receivables subject to a Receivable Financing Transaction;




     (v) Liens arising in connection with industrial development bonds or other industrial
development, pollution control or other tax-favored or government-sponsored financing
transactions, provided that such Liens do not at any time encumber any property other than
the property financed by such transaction and other property, assets or revenues related to
the property so financed on which Liens are customarily granted in connection with such
transactions (in each case, together with improvements and attachments thereto);




     (vi) Liens granted after the Issue Date on any assets or properties of the Company or
any of its Restricted Subsidiaries to secure obligations under the Securities;




     (vii) Extensions, renewals and replacements of any Lien described in subsections (i)
through (vi) above; and




     (viii) Other Liens in respect of Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount at any time not exceeding 10% of Consolidated
Assets at such time.



     SECTION 4.08 Limitation on Sale and Lease-Back Transactions.



     The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into
any sale and lease-back transaction for the sale and leasing back of any property or asset, whether
now owned or hereafter acquired, of the Company or any of its Restricted Subsidiaries (except such
transactions (i) entered into prior to the Issue Date, (ii) for the sale and leasing back of any
property or asset by a Restricted Subsidiary of the Company to the Company or any other Restricted
Subsidiary of the Company, (iii) involving leases for less than three years or (iv) in which the
lease for the property or asset is entered into within 120 days after the later of the date of
acquisition, completion of construction or commencement of full operations of such property or
asset) unless:




     (i) the Company or such Restricted Subsidiary would be entitled under Section 4.07
hereof to create, incur, assume or permit to exist a Lien on the assets to be leased in an
amount at least equal to the Attributable Value in respect of such transaction without
equally and ratably securing the Securities; or




     (ii) the proceeds of the sale of the assets to be leased are at least equal to their
fair market value and the proceeds are applied to the purchase, acquisition, construction or
refurbishment of assets or to the repayment of Indebtedness of the Company or any of its
Restricted Subsidiaries which on the date of original incurrence had a maturity of more than
one year.



22









 





ARTICLE V




MERGER, ETC.




     SECTION 5.01 When Company May Merge, etc.



     The Company shall not consolidate or merge with or into, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets to, any Person unless:




     (i) the Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made, is a corporation organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia;




     (ii) the Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made, assumes by supplemental indenture satisfactory in form to
the Trustee all of the obligations of the Company under the Securities and this Indenture;
and




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



     Notwithstanding the foregoing, the Company may merge with another Person or acquire by
purchase or otherwise all or any part of the property or assets of any other corporation or Person
in a transaction in which the surviving entity is the Company.



     SECTION 5.02 Successor Corporation Substituted.



     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all the assets of the Company in accordance with Section
5.01 hereof, the successor corporation formed by such consolidation or into which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had been named as the
Company herein. In the event of any such sale or conveyance, but not any such lease, the Company
or any successor corporation which thereafter will have become such in the manner described in this
Article V shall be discharged from all obligations and covenants under the Securities and this
Indenture and may be dissolved, wound up or liquidated.



ARTICLE VI




DEFAULTS AND REMEDIES




     SECTION 6.01 Events of Default.



     An “Event of Default” with respect to each series of the Securities occurs when any of the
following occurs:




     (i) the Company defaults in the payment of the principal of any Security of such series
when it becomes due and payable at maturity, upon acceleration, redemption or otherwise;



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     (ii) the Company defaults in the payment of interest on any Security of such series
when it becomes due and payable and such default continues for a period of 30 days;




     (iii) the Company or any Guarantor fails to comply with any of its other agreements or
covenants in, or provisions of, the Securities or this Indenture and the Company does not
cure the Default within sixty (60) days after the Trustee notifies the Company in writing,
or the holders of at least 25% in principal amount of the outstanding Securities of such
series notify the Company and the Trustee in writing;




     (iv) any Guarantee of the Securities of such series ceases to be in full force and
effect or any Guarantor denies or disaffirms its obligations under its Guarantee of the
Securities of such series, except, in each case, in connection with a release of a Guarantee
in accordance with the terms of this Indenture;




     (v) the nonpayment at maturity or other default (beyond any applicable grace period)
under any agreement or instrument relating to any other Indebtedness of the Company or any
of its Significant Subsidiaries (the unpaid principal amount of which is not less than
$50,000,000), which default results in the acceleration of the maturity of such Indebtedness
prior to its stated maturity or occurs at the final maturity thereof and such acceleration
has not been rescinded or annulled, or such Indebtedness repaid, within thirty (30) days
after the Trustee notifies the Company in writing, or the holders of at least 25% in
principal amount of the outstanding Securities of such series notify the Company and the
Trustee in writing; provided that if any such default with respect to other Indebtedness is
cured, waived, rescinded or annulled, then any Event of Default by reason thereof shall be
deemed not to have occurred;




     (vi) the Company or a Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:




     (a) commences a voluntary case or proceeding;




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




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




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




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




     (a) is for relief against the Company or any Significant Subsidiary in an
involuntary case or proceeding;




     (b) appoints a Custodian for the Company or any Significant Subsidiary or for
all or substantially all of its property; or



24









 






     (c) orders the winding up or liquidation of the Company or any Significant
Subsidiary,




and any such order or decree under this clause (vii) remains unstayed and in effect for 60
days.



     Any notice of default under clause (iii) or (v) of this Section 6.01 must specify the Default,
demand that it be remedied and state that the notice is a “Notice of Default.”



     SECTION 6.02 Acceleration.



     Subject to Article X, if an Event of Default with respect to any series of outstanding
Securities (other than an Event of Default specified in clause (vi) or (vii) of Section 6.01
hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities of the applicable series, by written notice to the Company, may declare
due and payable 100% of the principal amount of all Securities of such series plus any accrued and
unpaid interest to the date of payment. Upon a declaration of acceleration, such principal (or
such lesser amount) and accrued and unpaid interest to the date of payment shall be due and
payable. If an Event of Default specified in clause (vi) or (vii) of Section 6.01 hereof occurs,
all unpaid principal and accrued interest on the Securities shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holder.



     The Holders of a majority in principal amount of any outstanding series of Securities by
written notice to the Trustee may rescind and annul an acceleration and its consequences if (i) all
existing Events of Default, other than the nonpayment of principal (or such lesser amount) of or
interest on the Securities which have become due solely because of the acceleration, have been
cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction.



     SECTION 6.03 Other Remedies.



     If an Event of Default with respect to any series of outstanding Securities occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on such series of Securities or to enforce the
performance of any provision of such series of Securities or this Indenture, including, without
limitation, seeking recourse against any Guarantor.



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



     SECTION 6.04 Waiver of Past Defaults.



     Subject to Sections 6.07 and 9.02 hereof, the Holders of at least a majority in principal
amount of any series of outstanding Securities by notice to the Trustee may waive an existing
Default or Event of Default except a Default or Event of Default in the payment of the principal of



25









 







or interest on such series of Securities (provided, however, that, subject to Section 6.07,
the Holders of a majority in principal amount of the then outstanding Securities may rescind an
acceleration and its consequences, including any related payment default that resulted from such
acceleration). When a Default or Event of Default is waived, it is deemed cured and ceases.



     SECTION 6.05 Control by Majority.



     The Holders of at least a majority in principal amount of any outstanding series of Securities
may direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that (i) conflicts with law or this Indenture, (ii) the Trustee determines may
be unduly prejudicial to the rights of other Holders of Securities of such series or (iii) may
involve the Trustee in personal liability. The Trustee may take any other action that it deems
proper which is not inconsistent with any such direction.



     SECTION 6.06 Limitation on Suits.



     Subject to the provisions of Section 6.07 hereof, no Holder of Securities of any series may
pursue any remedy with respect to this Indenture or the Securities of such series unless:




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




     (ii) the Holders of at least 25% in principal amount of such series of Securities make
a written request to the Trustee to pursue the remedy;




     (iii) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability, cost or expense;




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




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



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



     SECTION 6.07 Rights of Holders To Receive Payment.



     Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal of or interest, if any, on the Security on or after the respective
due dates expressed or provided for in the Security, subject to the provisions of Article X, 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 the Holder.



26









 





     SECTION 6.08 Collection Suit by Trustee.



     If an Event of Default specified in Section 6.01(i) or (ii) hereof occurs and is continuing
with respect to the Securities, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company (and any other obligor on the Securities, including any
Guarantor) for the whole amount of principal and accrued interest, if any, remaining unpaid on the
outstanding Securities (and the related Guarantees), together with (to the extent lawful) interest
on overdue principal and interest, and such further amount as shall be sufficient to cover the
costs and, to the extent lawful, expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts
due the Trustee under Section 7.08 hereof.



     SECTION 6.09 Trustee May File Proofs of Claim.



     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in any judicial
proceeding relative to the Company (or any other obligor upon the Securities, including any
Guarantor), its creditors or its property and shall be entitled and empowered to collect and
receive any moneys or other property payable or deliverable on any such claims and to distribute
the same, and any custodian in any such judicial proceedings 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 7.08 hereof. Nothing contained in
this Indenture 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 Securities or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.



     SECTION 6.10 Priorities.



     If the Trustee collects any amount of money with respect to the Securities pursuant to this
Article VI, it shall pay out the money in the following order:



     (First) to the Trustee, its agents and attorneys for amounts due under Section 7.08 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 Senior Indebtedness in accordance with Article X hereof;



     (Third) to Holders for amounts due and unpaid on the Securities for principal and interest, if
any, ratably, without preference or priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively; and



     (Fourth) to the Company or any other obligors on the Securities, as their interests may
appear, or to such party as a court of competent jurisdiction may direct.



     The Trustee, upon prior written notice to the Company, may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.10. The Trustee shall notify the Company in
writing reasonably in advance of any such record date and payment date.



27









 





     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 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof or a suit by Holders of
more than 10% in principal amount of any outstanding series of Securities.



     SECTION 6.12 Stay, Extension and Usury Laws.



     The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and the Company and each
Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.



ARTICLE VII




TRUSTEE




     SECTION 7.01 Duties of Trustee.



     (a) If an Event of Default with respect to the Securities 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 their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.



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




     (1) the Trustee need perform only those duties that are specifically set forth in this
Indenture or the TIA, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and




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



28









 





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




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




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to 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), (c) and (e) 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 may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability, cost or expense
(including, without limitation, reasonable fees of counsel).



     (f) The Trustee shall not be obligated to pay interest on any money or other assets received
by it unless otherwise agreed in writing with the Company. Assets held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.



     (g) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the 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 shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.



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



29









 





     SECTION 7.02 Rights of Trustee.



     Subject to Section 315(a) through (d) of the TIA:



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



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel, or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.



     (c) The Trustee may act through attorneys and agents and shall not be responsible for the
misconduct or negligence of any attorney or 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, unless the Trustee’s conduct constitutes negligence.



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



     (f) 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.



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



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



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



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



30









 





     SECTION 7.03 Individual Rights of Trustee.



     The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or 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 (as such term is defined in Section 3.10(b) of the TIA), it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as trustee (to the extent
permitted under Section 310(b) of the TIA) or resign. Any agent may do the same with like rights
and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.



     SECTION 7.04 Money Held in Trust.



     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.



     SECTION 7.05 Trustee’s Disclaimer.



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



     SECTION 7.06 Notice of Defaults.



     If a Default or Event of Default with respect to the Securities occurs and is continuing, and
if it is actually known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default
or Event of Default in payment of any such Security, the Trustee may withhold the notice if and so
long as it in good faith determines that withholding the notice is in the interests of the Holders.



     SECTION 7.07 Reports by Trustee to Holders.



     The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required by Section 313 of the TIA at the times and in the manner
provided by the TIA, which initially shall be not less than every twelve months commencing on and
may be dated as of a date up to 75 days prior to such transmission.



     A copy of each report at the time of its mailing to Holders shall be filed with the SEC, if
required, and each stock exchange, if any, on which the Securities are listed. The Company shall
promptly notify the Trustee when the Securities become listed on any stock exchange.



     SECTION 7.08 Compensation and Indemnity.



     The Company shall pay to the Trustee from time to time such compensation as shall be agreed in
writing between the Company and the Trustee for its services hereunder. The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable disbursements, advances and expenses
incurred by it, including in particular, but without limitation, those incurred in



31









 







connection with the enforcement of any remedies hereunder. Such expenses may include the
reasonable fees and out-of-pocket expenses of the Trustee’s agents and counsel.



     Except as set forth in the next paragraph, the Company and the Guarantors, jointly and
severally, shall indemnify and hold harmless the Trustee and any predecessor trustee against any
and all loss, liability, damage, claim or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) incurred by it arising out of or in
connection with the acceptance or administration of the trust under this Indenture. The Trustee
shall notify the Company promptly of any claim of which it has received written notice for which it
may seek indemnity. The Company shall defend such claim and the Trustee shall cooperate in such
defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and
out-of-pocket expenses of such counsel.



     The Company need not reimburse any expense or indemnify against any loss, liability, cost or
expense incurred by the Trustee through its own negligence, willful misconduct or bad faith.



     To secure the Company’s payment obligations in this Section 7.08, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay the principal of and interest on particular Securities. The Trustee’s right
to receive payment of any amounts due under this Section 7.08 will not be subordinate to any other
liability or indebtedness of the Company.



     The Company’s payment obligations pursuant to this Section 7.08 shall survive the satisfaction
and discharge of this Indenture. When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (vi) or (vii) of Section 6.01 hereof occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any
Bankruptcy Law.



     The provisions of this Section shall survive the termination of this Indenture.



     SECTION 7.09 Replacement of Trustee.



     A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.09.



     The Trustee may resign and be discharged from the trust hereby created with respect to the
Securities by so notifying the Company in writing. The Holders of a majority in principal amount
of the then outstanding Securities may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company must remove the Trustee if:




     (i) the Trustee fails to comply with Section 7.10 hereof or Section 310 of the TIA;




     (ii) 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;




     (iii) a Custodian or public officer takes charge of the Trustee or its property; or



32









 






     (iv) the Trustee becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for
any reason, the Company shall promptly appoint a successor Trustee for the Securities. The Trustee
shall be entitled to payment of its fees and reimbursement of its expenses while acting as Trustee.
Within one year after the successor Trustee takes office, the Holders of at least a majority in
principal amount of then outstanding Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.



     Any Holder of Securities may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee if the Trustee fails to comply with Section
7.10 hereof.



     If an instrument of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation or removal, the resigning or
removed Trustee, as the case may be, may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities.



     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 Company shall mail a notice of the successor Trustee’s
succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.08 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.09, the Company’s obligations
under Section 7.08 hereof shall continue for the benefit of the retiring Trustee with respect to
expenses, losses and liabilities incurred by it prior to such replacement.



     SECTION 7.10 Successor Trustee by Merger, Etc.



     Subject to Section 7.09 hereof, if the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another corporation or
national banking association, the successor entity without any further act shall be the successor
Trustee.



     SECTION 7.11 Eligibility; Disqualification.



     The Trustee shall at all times satisfy the requirements of Section 310(a)(1), (2) and (5) of
the TIA. The Trustee shall at all times have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition. The Trustee is
subject to Section 310(b) of the TIA.



     SECTION 7.12 Preferential Collection of Claims Against the Company.



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



33









 





ARTICLE VIII




DISCHARGE OF INDENTURE




     SECTION 8.01 Satisfaction and Discharge of Indenture.



     This Indenture shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:




     (i) either:




     (a) all Securities previously authenticated and delivered (other than
Securities which have been destroyed, lost or stolen and which have been replaced or
paid) have been delivered to the Trustee for cancellation; or




     (b) all such Securities not previously delivered to the Trustee for
cancellation have become due and payable (whether at stated maturity, early
redemption or otherwise);




and, in the case of clause (b) above, the Company has deposited, or caused to be deposited,
irrevocably with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated solely to the benefit of the
Holders of Securities, cash in U.S. dollars and/or U.S. Government Obligations which through
the payment of interest and principal in respect thereof, in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of money, an amount in
cash, 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
principal of and interest on all the Securities on the dates such payments of principal or
interest are due to maturity or redemption;




     (ii) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Securities; and




     (iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities have been
complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.08 hereof shall survive, and, if money will have been
deposited with the Trustee pursuant to subclause (b) of clause (i) of this Section, the obligations
of the Trustee under Sections 8.02 and 8.05 hereof shall survive.



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     SECTION 8.02 Application of Trust Funds; Indemnification.



     (a) Subject to the provisions of Section 8.05 hereof, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.01, 8.03 or 8.04 hereof and all money
received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Sections 8.01, 8.03 or 8.04 hereof, shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the persons entitled thereto,
of the principal and interest for whose payment such money has been deposited with or received by
the Trustee.



     (b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations deposited pursuant to Sections 8.01,
8.03 or 8.04 hereof or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.



     (c) The Trustee shall deliver or pay to the Company from time to time upon the request of the
Company any U.S. Government Obligations or money held by it as provided in Sections 8.01, 8.03 or
8.04 hereof which, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to be deposited for the purpose
for which such U.S. Government Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this
Indenture.



     SECTION 8.03 Legal Defeasance.



     (a) The Company and the Guarantors shall be deemed to have been discharged from their
obligations with respect to all of the outstanding Securities of any series and the related
Guarantees on the 91st day after the date of the deposit referred to in subparagraph (d) hereof,
and the provisions of this Indenture, as it relates to such series of outstanding Securities and
the related Guarantees, shall no longer be in effect (and the Trustee, at the expense of the
Company, shall, upon the request of the Company, execute proper instruments acknowledging the
same), except as to:




     (i) the rights of Holders of Securities of such series to receive, solely from the
trust funds described in subparagraph (a) hereof, payments of the principal of or interest
on the outstanding Securities of such series on the date such payments are due;




     (ii) the Company’s obligations with respect to the Securities of such series under
Sections 2.04, 2.05, 2.07, 2.08 and 2.10 hereof; and




     (iii) the rights, powers, trust and immunities of the Trustee hereunder and the duties
of the Trustee under Section 8.02 hereof and the duty of the Trustee to authenticate
Securities of such series issued on registration of transfer of exchange;



provided that the following conditions shall have been satisfied:





     (a) the Company shall have deposited, or caused to be deposited, irrevocably
with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated solely to the



35









 







benefit of the Holders of such series of Securities, cash in U.S. dollars
and/or U.S. Government Obligations which through the payment of interest and
principal in respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount in
cash, 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 principal of and interest on all the Securities of such series on
the dates such payments of principal or interest are due to maturity or redemption;




     (b) such deposit will not result in a breach or violation of, or constitute a
Default under, this Indenture;




     (c) no Default or Event of Default with respect to such series of Securities
shall have occurred and be continuing on the date of such deposit and 91 days shall
have passed after the deposit has been made, and, during such 91 day period, no
Default specified in Section 6.01(vi) or (vii) hereof with respect to the Company
occurs which is continuing at the end of such period;




     (d) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel to the effect 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 execution 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 such series of Securities will
not recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred;




     (e) 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 of such series of Securities over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other creditors
of the Company;




     (f) such deposit shall not result in the trust arising from such deposit
constituting an “investment company” (as defined in the Investment Company Act of
1940, as amended), or such trust shall be qualified under such Act or exempt from
regulation thereunder; and




     (g) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating to
the defeasance contemplated by this Section 8.03 have been complied with.



36









 





     SECTION 8.04 Covenant Defeasance.



     On and after the 91st day after the date of the deposit referred to in subparagraph (a)
hereof, the Company may omit to comply with any term, provision or condition set forth under
Sections 4.03(a), 4.04, 4.05, 4.07, 4.08 and 11.06 hereof as well as any additional covenants
contained in a supplemental indenture hereto (and the failure to comply with any such provisions
shall not constitute a Default or Event of Default under Section 6.01 hereof) and the occurrence of
any event described in clause (iii) of Section 6.01 hereof shall not constitute a Default or Event
of Default hereunder, with respect to any series of Securities, provided that the following
conditions shall have been satisfied:




     (i) with reference to this Section 8.04, the Company has deposited, or caused to be
deposited, irrevocably (except as provided in Section 8.05 hereof) with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such series of Securities, cash in U.S. dollars and/or U.S. Government
Obligations which through the payment of principal and interest in respect thereof, in
accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay principal and interest on all the
Securities of such series on the dates such payments of principal and interest are due to
maturity or redemption;




     (ii) such deposit will not result in a breach or violation of, or constitute a Default
under, this Indenture;




     (iii) no Default or Event of Default with respect to such series of Securities shall
have occurred and be continuing on the date of such deposit and 91 days shall have passed
after the deposit has been made, and, during such 91 day period, no Default specified in
Section 6.01(vi) or (vii) hereof with respect to the Company occurs which is continuing at
the end of such period;




     (iv) the Company shall have delivered to the Trustee an Opinion of Counsel confirming
that Holders of such series of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and 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 deposit and defeasance had not occurred;




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




     (vi) such deposit shall not result in the trust arising from such deposit constituting
an “investment company” (as defined in the Investment Company Act of 1940, as amended), or
such trust shall be qualified under such Act or exempt from regulation thereunder; and



37









 






     (vii) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated by this Section 8.04 have been complied with.



     SECTION 8.05 Repayment to Company.



     The Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years after the date upon
which such payment shall have become due. After payment to the Company, Holders entitled to the
money must look to the Company for payment as general creditors unless an applicable abandoned
property law designates another Person.



ARTICLE IX




AMENDMENTS, SUPPLEMENTS AND WAIVERS




     SECTION 9.01 Without Consent of Holders.



     Without the consent of any Holder, the Company, the Guarantors and the Trustee may, at any
time, amend this Indenture, the Securities or the Guarantees to:




     (i) cure any ambiguity, defect or inconsistency, provided that such change does not
adversely affect the rights hereunder of any Holder in any material respect;




     (ii) provide for uncertificated Securities in addition to or in place of certificated
Securities or to alter the provisions of Article II hereof (including the related
definitions) in a manner that does not materially adversely affect any Holder;




     (iii) provide for the assumption of the Company’s obligations to the Holders of
Securities in the case of a merger, consolidation or sale or other disposition of assets
pursuant to Article V hereof;




     (iv) comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA, provided that such change does not adversely
affect the rights hereunder of any Holder in any material respect;




     (v) make any change that does not adversely affect in any material respect the rights
hereunder of any Holder;




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




     (vii) add a Guarantor or remove a Guarantor in respect to any series of Securities
which, in accordance with the terms of this Indenture, ceases to be liable in respect of its
Guarantee;




     (viii) secure the Securities of any series; or



38









 






     (ix) make appropriate provision in connection with the appointment of any successor
Trustee.



     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 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.



     Except as provided below in this Section 9.02, this Indenture, the Securities or the
Guarantees may be amended or supplemented, and noncompliance in any particular instance with any
provision of this Indenture, the Securities or the Guarantees may be waived, in each case with the
written consent of the Holders of at least a majority in principal amount of the then outstanding
Securities affected thereby; provided, however, that any amendment to or supplement of this
Indenture, the Securities or the Guarantees that by its terms affects the rights of Holders of any
series of then outstanding Securities but not the others series may be effected, and any default or
compliance with any provision of this Indenture affecting the Holders of any series of then
outstanding Securities but not the other series may be waived, with the consent of at least a
majority in principal amount of the Securities of the affected series.



     Without the consent of each Holder of Securities that is affected thereby, an amendment or
waiver under this Section 9.02 may not:




     (i) reduce the principal amount of Securities of any series the Holders of which must
consent to an amendment, supplement or waiver of any provision of this Indenture;




     (ii) reduce the rate of or extend the time for payment of interest on any series of
Securities;




     (iii) reduce the principal of or change the stated maturity of any series of
Securities;




     (iv) change the date on which any Security of any of series may be subject to
redemption, or reduce the redemption price therefor;




     (v) make any Security of any series payable in currency other than that stated in the
Security;




     (vi) modify or change any provision of this Indenture affecting the ranking of the
Securities of any series in a manner which adversely affects the Holders thereof;




     (vii) impair the right of any Holder of Securities to institute suit for the
enforcement of any payment in or with respect to any such series of Securities;



39









 






     (viii) modify or make any change in Article X which adversely affects the rights of any
Holder;




     (ix) modify or change any provision of any Guarantee in a manner which adversely
affects the Holders of any series of Securities; or




     (x) make any change in the foregoing amendment and waiver provisions which require each
Holder’s consent.



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



     After an amendment or waiver under this Section 9.02 becomes effective, the Company shall mail
to Holders affected thereby a notice briefly describing the amendment 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.



     SECTION 9.03 Compliance with Trust Indenture Act.



     Every amendment to this Indenture or the Securities shall be set forth in a 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 and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security; provided, however, that unless a record date shall have been
established pursuant to Section 2.17 hereof, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver becomes effective on receipt by the Trustee of consents from the Holders of
the requisite percentage principal amount of the outstanding Securities, and thereafter shall bind
every Holder of Securities; provided, however, if the amendment, supplement or waiver makes a
change described in any of the clauses (i) through (ix) of Section 9.02 hereof, the amendment,
supplement or waiver shall bind only each Holder of a Security which has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same indebtedness as
the consenting Holder’s Security.



     SECTION 9.05 Notation on or Exchange of Securities.



     If an amendment, supplement or waiver changes the terms of a Security:



     (a) the Trustee may require the Holder of a Security to deliver such Security to the Trustee,
the Trustee may place an appropriate notation on the Security about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any Security thereafter
authenticated; or



40









 





     (b) if the Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.



     Failure to make the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.



     SECTION 9.06 Trustee to Sign Amendment, etc.



     The Trustee shall sign any amendment authorized pursuant to this Article IX if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may but need not sign it. In signing or refusing to sign such amendment, the
Trustee shall be provided with and shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that such amendment is authorized or
permitted by this Indenture.



ARTICLE X




SUBORDINATION




     SECTION 10.01 Securities Subordinated to Senior Indebtedness.



     Notwithstanding the provisions of Sections 6.02 and 6.03 hereof, the Company covenants and
agrees, and the Trustee and each Holder of the Securities by his acceptance thereof likewise
covenants and agrees, that all payments of the principal of and interest on the Securities by the
Company shall be subordinated in accordance with the provisions of this Article X to the prior and
indefeasible payment in full, in cash or cash equivalents, of all Obligations with respect to
Senior Indebtedness.



     SECTION 10.02 Priority and Payment Over of Proceeds in Certain Events.



     (a) Upon any payment or distribution of assets or securities of the Company, as the case may
be, of any kind or character, whether in cash, property or securities, upon any dissolution or
winding up or total or partial liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all Obligations with
respect to Senior Indebtedness shall first be indefeasibly paid in full in cash, or payment
provided for in cash or cash equivalents, before the Holders or the Trustee on behalf of the
Holders shall be entitled to receive any payment of principal of or interest on the Securities or
distribution of any assets or securities. Before any payment may be made by the Company of the
principal of or interest on the Securities pursuant to the provisions of the previous sentence, and
upon any such dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee on their behalf would be entitled,
except for the provisions of this Article X, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, directly to the holders of the Senior Indebtedness or their representatives to the
extent necessary to pay all such Senior Indebtedness in full after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.



41









 





     (b) No direct or indirect payment by or on behalf of the Company of principal of or interest
on the Securities whether pursuant to the terms of the Securities or upon acceleration or otherwise
shall be made if, at the time of such payment, (i) there exists a default in the payment of any
Obligations with respect to Senior Indebtedness with a lending commitment or an aggregate principal
amount outstanding in excess of $50 million or the maturity of such Senior Indebtedness with a
lending commitment or an aggregate principal amount outstanding in excess of $50 million has been
accelerated or (ii) any judicial proceeding shall be pending with respect to a default on Senior
Indebtedness with a lending commitment or an aggregate principal amount outstanding in excess of
$50 million (and the Trustee has received written notice thereof), and such default shall not have
been cured or waived or the benefits of this sentence waived by or on behalf of the holders of such
Senior Indebtedness with a lending commitment or an aggregate principal amount outstanding in
excess of $50 million.



     If payments with respect to both the Securities and Senior Indebtedness become due on the same
day, then all Obligations with respect to such Senior Indebtedness due on that date shall first be
paid in full before any payment is made with respect to the Securities.



     (c) In the event that, notwithstanding the foregoing provision prohibiting such payment or
distribution, the Trustee or any Holder shall have received any payment on account of the principal
of or interest on the Securities at a time when such payment is prohibited by this Section 10.02
and before all Obligations with respect to Senior Indebtedness are paid in full, then, and in such
event (subject to the provisions of Section 10.08), such payment or distribution shall be received
and held in trust for the holders of Senior Indebtedness and, upon notice to the Trustee from the
representative of the holders of the Senior Indebtedness and pursuant to the directions of such
representative, shall be paid over or delivered to the holders of the Senior Indebtedness remaining
unpaid to the extent necessary to pay in full in cash or cash equivalents all Obligations with
respect to such Senior Indebtedness in accordance with its terms after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.



     If there occurs an event referred to in Section 10.02(a) or (b), the Company shall promptly
give the Trustee an Officers’ Certificate (on which the Trustee may conclusively rely) identifying
all holders of Senior Indebtedness and the principal amount of Senior Indebtedness then outstanding
held by each such holder and stating the reasons why such Officers’ Certificate is being delivered
to the Trustee.



     Nothing contained in this Article X shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities pursuant to Section 6.02
or to pursue any rights or remedies hereunder; provided that all Obligations with respect to Senior
Indebtedness then or thereafter due or declared to be due shall first be paid in full before the
Holders or the Trustee are entitled to receive any payment from the Company of principal of or
interest on the Securities.



     Upon any payment or distribution of assets or securities referred to in this Article X, the
Trustee and the Holders shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or reorganization proceedings are
pending and upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making any such payment or distribution, delivered to the Trustee for the purpose
of



42









 







ascertaining the persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article X.



     SECTION 10.03 Payments May Be Paid Prior to Dissolution.



     Nothing contained in this Article X or elsewhere in this Indenture shall prevent the Company,
except under the conditions described in Section 10.02, from making payments at any time for the
purpose of making such payments of principal of and interest on the Securities, or from depositing
with the Trustee any moneys for such payments. The Company shall give prompt written notice to the
Trustee of any dissolution, winding up, liquidation or reorganization of the Company.



     SECTION 10.04 Rights of Holders of Senior Indebtedness Not to Be Impaired.



     No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act in good faith by any such holder, or by any noncompliance by the Company, with the terms and
provisions and covenants herein regardless of any knowledge thereof any such holder may have or
otherwise be charged with.



     The provisions of this Article X are intended to be for the benefit of, and shall be
enforceable directly by, the holders of the Senior Indebtedness.



     SECTION 10.05 Authorization to Trustee to Take Action to Effectuate Subordination.



     Each Holder of Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate, as between the holders
of Senior Indebtedness and the Holders, the subordination as provided in this Article X and
appoints the Trustee his attorney-in-fact for any and all such purposes.



     SECTION 10.06 Distribution or Notice to Representative.



     Whenever a distribution is to be made or a notice given to holders or owners of Senior
Indebtedness, the distribution may be made and the notice given to their representative.



     SECTION 10.07 Subrogation.



     Subject to the subrogation rights of the holders of the Subordinated Notes provided for in the
indenture relating thereto, upon the payment in full of all Obligations in respect of Senior
Indebtedness, the Holders shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company to the holders of Senior
Indebtedness until the principal of and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders would be entitled except for
the provisions of this Article X, and no payment over pursuant to the provisions of this Article X
to



43









 







the holders of Senior Indebtedness by the Holders, shall, as among the Company, its creditors
other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment or
distribution by the Company to or on account of Senior Indebtedness.



     The provisions of this Article X are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand.



     If any payment or distribution to which the Holders would otherwise have been entitled but for
the provisions of this Article X shall have been applied, pursuant to the provisions of this
Article X, to the payment of all amounts payable under Senior Indebtedness, then and in such case,
the Holders, subject to the subrogation rights of the holders of the Subordinated Notes provided
for in the indenture relating thereto, shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount sufficient to pay all Obligations in respect of Senior
Indebtedness in full.



     SECTION 10.08 Obligations of Company Unconditional.



     Nothing contained in this Article X or elsewhere in this Indenture or in any Security is
intended to or shall impair, as between the Company and the Holders, the obligations of the
Company, which are absolute and unconditional, to pay to the Holders the principal of and interest
on the Securities as and when the same shall become due and payable in accordance with their terms
or is intended to nor shall affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon
Default under this Indenture, subject to the rights, if any, under this Article X of the holders of
such Senior Indebtedness in respect of cash, property or securities of the Company received upon
the exercise of any such remedy.



     The failure to make a payment on account of principal of or interest on the Securities by
reason of any provision of this Article X shall not be construed as preventing the occurrence of an
Event of Default under Section 6.01.



     SECTION 10.09 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.



     The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Neither the Trustee nor the Paying Agent shall at any time be charged with the knowledge of the
existence of any facts which would prohibit the making of any payment to or by the Trustee or the
Paying Agent, unless and until the Trustee or Paying Agent shall have received written notice
thereof from the Company or one or more holders of Senior Indebtedness or from any representative
therefor; and, prior to the receipt of any such written notice, the Trustee or Paying Agent shall
be entitled to assume conclusively that no such facts exist. Unless at least two Business Days
prior to the date on which by the terms of this Indenture any moneys are to be deposited by the
Company with the Trustee or any Paying Agent (whether or not in trust) for any



44









 







purpose (including, without limitation, the payment of the principal of or the interest on any
Security), the Trustee or Paying Agent shall have received with respect to such moneys the notice
provided for in the preceding sentence, the Trustee or Paying Agent shall have full power and
authority to receive such moneys and to apply the same to the purpose for which they were received
and shall not be affected by any notice to the contrary which may be received by it on or after
such date. Nothing contained in this Section 10.09 or Section 10.03 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by Section 10.02. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a person representing
himself or itself to be a holder of such Senior Indebtedness (or a trustee on behalf of, or
representative of, such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder. In the event that
the Trustee determines in good faith that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article X, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person,
the extent to which such person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such person under this Article X, and if such evidence is
not furnished, the Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial determination as to the
rights of such person to receive such payment.



     The Trustee shall not be deemed to owe any duty to the holders of Senior Indebtedness and
shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article
X or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are specifically set forth in
this Article X and no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.



     SECTION 10.10 Right of Trustee to Hold Senior Indebtedness.



     The Trustee and any Agent shall be entitled to all of the rights set forth in this Article X
in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder
of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or any Agent of any of its rights as such holder. Nothing in this Article X shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07.



ARTICLE XI




GUARANTEES




     SECTION 11.01 Guarantees.



     (a) Subject to the provisions of this Article XI, each Guarantor, jointly and severally,
irrevocably and unconditionally guarantees to each Holder of Securities and to the Trustee on
behalf of the Holders:



45









 






     (i) the due and punctual payment in full of principal of and interest on the Securities
when due, whether at stated maturity, upon acceleration, redemption or otherwise;




     (ii) the due and punctual payment in full of interest on the overdue principal of and,
to the extent permitted by law, interest on the Securities; and




     (iii) the due and punctual payment of all other Obligations of the Company and the
other Guarantors to the Holders or the Trustee hereunder or under the Securities, including,
without limitation, the payment of fees, expenses, indemnification or other amounts.


In case of the failure of the Company punctually to make any such principal or interest payment or
the failure of the Company or any other Guarantor to pay any such other Obligation, each Guarantor
agrees to cause any such payment to be made punctually when due, whether at stated maturity, upon
acceleration, redemption or otherwise, and as if such payment were made by the Company and to
perform any such other Obligation of the Company immediately. Each Guarantor further agrees to pay
any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or
the Holders in enforcing any rights under these Guarantees. The Guarantees under this Article XI
are guarantees of payment and not of collection.




     (b) Each of the Company and the Guarantors waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company or
any other Guarantor, any right to require a proceeding first against the Company or any other
Guarantor, protest or notice with respect to the Securities and all demands whatsoever, and
covenants that these Guarantees shall not be discharged except by complete performance of the
Obligations contained in the Securities and in this Indenture, or as otherwise specifically
provided therein or herein.



     (c) Each Guarantor waives and relinquishes:




     (i) any right to require the Trustee, the Holders or the Company (each, a “Benefited
Party”) to proceed against the Company, the Subsidiaries of the Company or any other Person
or to proceed against or exhaust any security held by a Benefited Party at any time or to
pursue any other remedy in any secured party’s power before proceeding against the
Guarantors;




     (ii) any defense that may arise by reason of the incapacity, lack of authority, death
or disability of any other Person or Persons or the failure of a Benefited Party to file or
enforce a claim against the estate (in administration, bankruptcy or any other proceeding)
of any other Person or Persons;




     (iii) demand, protest and notice of any kind (except as expressly required by this
Indenture), including, but not limited to, notice of the existence, creation or incurrence
of any new or additional indebtedness or obligation or of any action or non-action on the
part of the Guarantors, the Company, the Subsidiaries of the Company, any Benefited Party,
any creditor of the Guarantors, the Company or the Subsidiaries of the Company or on the



46









 







part of any other Person whomsoever in connection with any obligations the performance
of which are hereby guaranteed;




     (iv) any defense based upon an election of remedies by a Benefited Party, including but
not limited to an election to proceed against the Guarantors for reimbursement;




     (v) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal;




     (vi) any defense arising because of a Benefited Party’s election, in any proceeding
instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the
Bankruptcy Law; and




     (vii) any defense based on any borrowing or grant of a security interest under Section
364 of the Bankruptcy Law.



     (d) Each Guarantor further agrees that, as between such Guarantor, on the one hand, and
Holders and the Trustee, on the other hand:




     (i) for purposes of the relevant Guarantee, the maturity of the Obligations guaranteed
by such Guarantee may be accelerated as provided in Article VI, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Obligations
guaranteed thereby, and




     (ii) in the event of any acceleration of such Obligations (whether or not due and
payable) such Obligations shall forthwith become due and payable by such Guarantor for
purposes of such Guarantee.



     (e) The Guarantees shall continue to be effective or shall be reinstated, as the case may be,
if at any time any payment, or any part thereof, of principal of or interest on any of the
Securities is rescinded or must otherwise be returned by the Holders or the Trustee upon the
insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, all as though
such payment had not been made.



     (f) Each Guarantor shall be subrogated to all rights of the Holders against the Company in
respect of any amounts paid by such Guarantor pursuant to the provisions of the Guarantees or this
Indenture; provided, however, that a Guarantor shall not be entitled to enforce or to receive any
payments until the principal of and interest on all Securities issued hereunder shall have been
paid in full.



     SECTION 11.02 Obligations of Guarantors Unconditional.



     Each Guarantor agrees that its Obligations hereunder shall be Guarantees of payment and shall
be unconditional, irrespective of and unaffected by the validity, regularity or enforceability of
the Securities or this Indenture, or of any amendment thereto or hereto, the absence of any action
to enforce the same, the waiver or consent by any Holder or by the Trustee with respect to any



47









 







provisions thereof or of this Indenture, the entry of any judgment against the Company or any
other Guarantor or any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.



     SECTION 11.03 Subordination.



     The Obligations of each Guarantor pursuant to this Article XI will be junior and subordinated
to the Senior Indebtedness of such Guarantor on the same basis as the Securities are junior and
subordinated to the Senior Indebtedness. For the purposes of the foregoing sentence, the Trustee
and the Holders will have the right to receive and/or retain payments by any of the Guarantors only
at such times as they may receive and/or retain payments in respect of the Securities pursuant to
this Indenture, including Article X hereof.



     SECTION 11.04 Limitation on Guarantors’ Liability.



     Each Guarantor, and by its acceptance hereof each Holder, confirms that it is the intention of
all such parties that the Guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor irrevocably agree that the
Obligations of such Guarantor under this Article XI shall be limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of such Guarantor and
after giving effect to any collections from or payments made by or on behalf of any other Guarantor
in respect of the Obligations of such other Guarantor under this Article XI, result in the
Obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or
conveyance under applicable federal or state law.



     SECTION 11.05 Releases of Guarantees.



     (a) If the Securities are defeased in accordance with the terms of Article VIII of this
Indenture, then each Guarantor shall be deemed to have been released from and discharged of its
obligations under its Guarantee as provided in Article VIII hereof in respect of such Securities,
subject to the conditions stated therein.



     (b) In the event an entity that is a Guarantor ceases to be a guarantor under the Senior
Credit Facilities and the Existing Senior Notes, such entity shall also cease to be a Guarantor,
whether or not a Default or an Event of Default is then outstanding, subject to reinstatement as a
Guarantor in the event that such entity should thereafter become a Guarantor under our Senior
Credit Facilities or the Existing Senior Notes. In connection with any Guarantor ceasing to be a
Guarantor hereunder, the Company shall deliver to the Trustee an Officers’ Certificate certifying
that a Guarantor has ceased to be a guarantor under the Senior Credit Facilities (or will cease to
be a guarantor concurrently with it ceasing to be a Guarantor). Upon delivery to the Trustee of
such Officers’ Certificate, upon the request of the Company, the Trustee shall execute proper
documents acknowledging the release of such Guarantor from its obligations under the Indenture and
the Securities, effective upon the Guarantor ceasing to be a guarantor under the Senior Credit
Facilities.



48









 





     (c) Any Guarantor not released from its obligations under its Guarantee shall remain liable
for the full amount of principal of and interest on the Securities and for the other obligations of
the Company, such Guarantor and any other Guarantor under this Indenture as provided in this
Article XI.



     SECTION 11.06 Application of Certain Terms and Provisions to Guarantors.



     (a) For purposes of any provision of this Indenture that provides for the delivery by any
Guarantor of an Officers’ Certificate or an Opinion of Counsel or both, the definitions of such
terms in Section 1.01 hereof shall apply to such Guarantor as if references therein to the Company
were references to such Guarantor.



     (b) Any request, direction, order or demand which by any provision of this Indenture is to be
made by any Guarantor shall be sufficient if evidenced by a written order of the Guarantor signed
by one Officer of such Guarantor.



     (c) Any notice or demand that by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the Holders to or on any Guarantor may be given or served
as described in Section 11.02 hereof.



     (d) Upon any demand, request or application by any Guarantor to the Trustee to take any action
under this Indenture, such Guarantor shall furnish to the Trustee such certificates and opinions as
are required in Section 7.02 hereof as if all references therein to the Company were references to
such Guarantor.



     SECTION 11.07 Additional Guarantors.



     The Company shall cause each subsidiary of the Company that becomes a guarantor under the
Senior Credit Facilities (including any subsidiary that may have been formerly released as a
Guarantor pursuant to Section 11.05) or the Existing Senior Notes, after the Issue Date, to execute
and deliver to the Trustee, promptly upon any such formation or acquisition:




     (i) a supplemental indenture in form and substance satisfactory to the Trustee which
subjects such subsidiary to the provisions of this Indenture as a Guarantor, and




     (ii) an Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by such subsidiary and constitutes the legally valid and binding
obligation of such subsidiary (subject to exceptions concerning fraudulent conveyance laws,
creditors’ rights and equitable principles and other customary exceptions as may be
acceptable to the Trustee in its discretion).



49









 





ARTICLE XII




MISCELLANEOUS




     SECTION 12.01 Trust Indenture Act Controls.



     This Indenture is subject to the provisions of the TIA which are required to be part of this
Indenture, and shall, to the extent applicable, be governed by such provisions.



     SECTION 12.02 Notices.



     Any notice or communication to the Company, the Guarantors or the Trustee is duly given if in
writing and delivered in person or mailed by first-class mail to the address set forth below:



     If to the Company or any Guarantor, addressed to the Company or such Guarantor:


Lear Corporation

21557 Telegraph Road

Southfield, Michigan 48086-5008

Attention: Chief Financial Officer




     with a copy to:


Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60601

Attention: Bruce A. Toth, Esq.




     If to the Trustee:


Attention:




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



     Any notice or communication to a Holder shall be mailed by first-class mail to his address
shown on the Register kept by the Registrar. Failure to mail a notice or communication to a Holder
or any defect in such notice or communication shall not affect its sufficiency with respect to
other Holders.



     If a notice or communication is mailed or sent in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except that notice to the
Trustee shall only be effective upon receipt thereof by the Trustee.



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



     SECTION 12.03 Communication by Holders with Other Holders.



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



50









 





     SECTION 12.04 Certificate and Opinion as to Conditions Precedent.



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




     (i) an Officers’ Certificate (which shall include the statements set forth in Section
12.05 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




     (ii) an Opinion of Counsel (which shall include the statements set forth in Section
12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent
and covenants have been complied with.



     SECTION 12.05 Statements Required in Certificate or Opinion.



     Each certificate (other than certificates provided pursuant to Section 4.04 hereof) or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall
include:




     (i) a statement that each individual signing such certificate or opinion has read such
covenant or condition;




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




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




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



     SECTION 12.06 Rules by Trustee and Agents.



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



     SECTION 12.07 Legal Holidays.



     A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions in The City
of New York are not required or authorized to be open. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.



51









 





     SECTION 12.08 Duplicate Originals.



     The parties may sign any number of copies of this Indenture. One signed copy is enough to
prove this Indenture.



     SECTION 12.09 Governing Law.



     This Indenture, the Securities and the Guarantees shall be governed by, and construed in
accordance with, the laws of the State of New York.



     SECTION 12.10 No Adverse Interpretation of Other Agreements.



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



     SECTION 12.11 Successors.



     All agreements of the Company under the Securities and this Indenture and of the Guarantors
under the Guarantees and this Indenture shall bind their respective successors. All agreements of
the Trustee in this Indenture shall bind its successor.



     SECTION 12.12 Severability.



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



     SECTION 12.13 Counterpart Originals.



     This Indenture may be signed in one or more counterparts. Each signed copy shall be an
original, but all of them together represent the same agreement.



     SECTION 12.14 Submission to Jurisdiction.



     By the execution and delivery of this Indenture, the Company and each of the Guarantors
submits to the nonexclusive jurisdiction of any federal or state court in the State of New York
with respect to all matters related to this Indenture, the Securities and the Guarantees.



     SECTION 12.15 Waiver of Jury Trial.



     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.



52









 





     SECTION 12.16 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.



53









 





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



	 	 	 	 	 	 	 
	 	 	LEAR CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:  
	 	 

	 	   
	 

	 	Title:  	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LEAR OPERATIONS CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LEAR SEATING HOLDINGS CORP. #50	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LEAR CORPORATION EEDS AND INTERIORS	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LEAR AUTOMOTIVE DEARBORN, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  

	 	 

	 	 
	 

	 	Name:  	 	 
	 	 
	 

	 	Title:  	 	 	 	 






54









 






	 	 	 	 	 	 	 
	 	 	LEAR CORPORATION (GERMANY) LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  

	 	 

	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LEAR AUTOMOTIVE (EEDS) SPAIN S.L.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LEAR CORPORATION MEXICO, S. DE R.L. DE C.V.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 






55









 






	 	 	 	 	 	 	 
	 	 	[TRUSTEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:  	 	 	 	 
	 

	 	Name:  
	 	 

	 	 
	 

	 	Title:  	 	 	 	 







56