1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 5, 2000 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ LEAR CORPORATION (Exact name of Registrant as specified in its charter) DELAWARE 13-3386776 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 21557 TELEGRAPH ROAD SOUTHFIELD, MICHIGAN 48086-5008 (248) 447-1500 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) JOSEPH F. MCCARTHY, ESQ. 21557 TELEGRAPH ROAD SOUTHFIELD, MICHIGAN 48086-5008 (248) 447-1500 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- Copies to: JOHN L. MACCARTHY DANIEL A. NINIVAGGI WINSTON & STRAWN 35 WEST WACKER DRIVE CHICAGO, ILLINOIS 60601 (312) 558-5600 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time after the effective date of this Registration Statement as the Registrant shall determine. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] --------------------- CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF TO BE REGISTERED(1) REGISTERED PER UNIT(3) OFFERING PRICE(3) REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- Debt securities........................... - --------------------------------------------------------------------------------------------------------------------------------- Common stock.............................. - --------------------------------------------------------------------------------------------------------------------------------- Preferred stock........................... - --------------------------------------------------------------------------------------------------------------------------------- Depository shares......................... - --------------------------------------------------------------------------------------------------------------------------------- Warrants to purchase common stock......... - --------------------------------------------------------------------------------------------------------------------------------- Warrants to purchase preferred stock...... - --------------------------------------------------------------------------------------------------------------------------------- Warrants to purchase debt securities...... - --------------------------------------------------------------------------------------------------------------------------------- Total..................................... $1,000,000,000(2) 100% $1,000,000,000 $158,400* - --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- (1) In addition to any preferred stock or common stock that may be issued directly under this registration statement, there are being registered hereunder an indeterminate number of shares of preferred stock and/or common stock as may be issued upon conversion, exchange and/or redemption of the debt securities, depository shares, preferred stock or warrants, as the case may be. No separate consideration will be received for any shares of preferred stock or common stock so issued upon conversion, exchange or redemption. (2) Includes securities previously registered under the Registrant's registration statement on Form S-3 (file no. 333-43085), referred to below. Subject to Rule 462(b) under the Securities Act, in no event will the aggregate initial offering price of the securities issued under this registration statement and such previously filed registration statement exceed $1,000,000,000, or, if any securities are issued in a currency or composite currency other than U.S. dollars, such different amount as shall result in an aggregate initial offering price of $1,000,000,000. For debt securities issued with an original issue discount, the amount to be registered is calculated as the initial accreted value of such debt securities. (3) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o). * The prospectus included in this registration statement also relates to $400,000,000 of debt securities previously registered under the Registrant's registration statement on Form S-3 (file no. 333-43085). A registration fee of $118,000 was paid upon the filing of the prior registration statement. This registration statement also constitutes Post-Effective Amendment No. 1 with respect to such prior registration statement on Form S-3 (file no. 333-43085). --------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
2 THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED JUNE 5, 2000 PROSPECTUS $1,000,000,000 LEAR CORPORATION LOGO DEBT SECURITIES COMMON STOCK PREFERRED STOCK DEPOSITORY SHARES COMMON STOCK PURCHASE WARRANTS PREFERRED STOCK PURCHASE WARRANTS DEBT SECURITIES PURCHASE WARRANTS --------------------- WE WILL PROVIDE SPECIFIC TERMS OF THESE SECURITIES IN SUPPLEMENTS TO THIS PROSPECTUS. YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU INVEST. --------------------- Our common stock is listed on the New York Stock Exchange under the trading symbol "LEA." NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------- This prospectus may not be used to consummate sales of securities unless accompanied by a prospectus supplement. , 2000
3 ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that Lear Corporation filed with the Securities and Exchange Commission using a "shelf" registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $1,000,000,000 or the equivalent of this amount in foreign currencies or foreign currency units. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described below under the heading "Where You Can Find More Information." You should rely only on the information provided in this prospectus and in any prospectus supplement including the information we incorporate by reference. We have not authorized anyone to provide you with different information. We are not offering the securities in any state where the offer is not permitted. You should not assume that the information in this prospectus, or any supplement to this prospectus, is accurate at any date other than the date indicated on the cover page of the documents. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. You may inspect and copy such material at the public reference facilities maintained by the Commission in Washington, D.C., Chicago, Illinois and New York, New York. Please call the Commission at 1-800-SEC-0330 for more information on the public reference rooms. You can also find our Commission filings at the Commission's website at http://www.sec.gov. In addition, you can inspect our reports, proxy statements and other information at the New York Stock Exchange, 20 Broad Street, New York, New York 10005, where our common stock is listed. The Commission allows us to incorporate by reference the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the Commission will automatically update and supersede the information in this prospectus. Accordingly, we incorporate by reference the following documents filed by us: 1. Current Report on Form 8-K/A dated September 1, 1998, and filed with the Commission on November 17, 1998; 2. Current Report on Form 8-K/A dated September 1, 1998, and filed with the Commission on October 19, 1999; 3. Annual Report on Form 10-K for the fiscal year ended December 31, 1999; 4. Current Report on Form 8-K dated May 4, 1999, and filed with the Securities and Exchange Commission on May 6, 1999; 5. Current Report on Form 8-K dated March 1, 2000, and filed with the Commission on March 2, 2000; 6. Quarterly Report on Form 10-Q for the fiscal quarter ended April 1, 2000. In addition, all reports and other documents we subsequently file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this prospectus shall be deemed to be incorporated by reference in this prospectus and to be part of this prospectus from the date of the filing of such reports and documents. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated in this prospectus by reference shall be deemed to be modified or superseded for the purposes of this prospectus to the extent that a statement contained in any subsequently filed document which is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You may obtain, without charge, a copy of any of the documents incorporated by reference in this prospectus, other than exhibits to those documents that are not specifically incorporated by reference into those documents, by writing or telephoning Lear Corporation, 21557 Telegraph Road, P.O. Box 5008, Southfield, Michigan 48086-5008, Attention: Investor Relations (248) 447-1684. 2
4 LEAR We are a major worldwide independent automotive supplier. We supply: - automotive interior systems; - automotive electrical distribution systems; - automotive seats; and - door panels, headliners, floor and acoustic systems and instrument panels. We have the capability to integrate electronics and electrical distribution systems into all five automotive interior systems, providing us the opportunity to manufacture and supply fully integrated automotive interior modules to our customers globally. Our principal executive offices are located at 21557 Telegraph Road, Southfield, Michigan 48086-5008. Our telephone number at that location is (248) 447-1500. FORWARD-LOOKING STATEMENTS This prospectus contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and we intend that such forward-looking statements be subject to the safe harbor requirements created thereby. Such forward-looking statements involve risks and uncertainties and include, but are not limited to, statements regarding future events and our plans, goals and objectives. When used in this document, the words "anticipate," "believe," "plan," "will," "may," "estimate," and "expect" and similar expressions are generally intended to identify forward-looking statements. Forward-looking statements, including statements regarding the intent, belief, or current expectations of Lear or our management, are not guarantees of future performance and involve risks and uncertainties. Our actual results may differ materially from those in the forward-looking statements as a result of various factors, including, but not limited to, - general economic conditions in the markets in which we operate, - fluctuations in worldwide or regional automobile and light truck production, - labor disputes involving Lear or our significant customers, - fluctuations in currency exchange rates and other risks associated with doing business in foreign countries, - changes in the practices and/or policies of our significant customers toward outsourcing automotive components and systems, - other risks detailed from time to time in our Commission filings, and - those items identified under "Risk Factors" in any prospectus supplement. All forward-looking statements in this prospectus are based on information available to us on the date of this prospectus. We do not intend to update or revise any forward-looking statements that we may make in this prospectus or other documents, reports, filings or press releases, whether as a result of new information, future events or otherwise. USE OF PROCEEDS Unless otherwise specified in the applicable prospectus supplement, the net proceeds we receive from the sale of the securities offered by this prospectus and the accompanying prospectus supplement will be used for general corporate purposes. General corporate purposes may include: - the repayment or refinancing of debt, - investments in or extensions of credit to our subsidiaries, - working capital, 3
5 - capital expenditures, or - the financing of possible acquisitions or business expansion or the refinancing of prior acquisition debt. The net proceeds may be invested temporarily or applied to repay short-term debt until they are used for their stated purpose. When particular securities are offered, we will describe in the applicable prospectus supplement our intended use for the net proceeds received from the sale of such securities. RATIO OF EARNINGS TO FIXED CHARGES The following table shows the ratio of earnings to fixed charges of Lear for the periods indicated. QUARTER ENDED YEAR ENDED ------------------- ------------ APRIL 1, APRIL 3, DECEMBER 31, 2000 1999 1999 -------- -------- ------------ Ratio of earning to fixed charges(1)...................... 2.2x 3.4x 2.7x YEAR ENDED --------------------------------------------------------- DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, 1998 1997 1996 1995 ------------ ------------ ------------ ------------ Ratio of earning to fixed charges(1)...................... 2.7x 4.1x 3.3x 2.9x - ------------------------- (1) "Fixed charges" include interest on debt, amortization and deferred financing fees and that portion of rental expenses representative of interest (deemed to be one-third of rental expense). "Earnings" include income (loss) before income taxes, fixed charges, undistributed earnings and minority interest. 4
6 THE SECURITIES WE MAY OFFER This prospectus is part of a shelf registration statement. Under this shelf registration statement, we may offer from time to time up to $1,000,000,000 of any of the following securities, either separately or in units: - Senior debt, senior subordinated debt or subordinated debt (collectively, the "debt securities"); - Common stock (issuable separately or upon conversion, exchange or redemption of warrants, debt securities or preferred stock); - Preferred stock; - Depository shares; - Warrants to purchase common stock; - Warrants to purchase preferred stock; - Warrants to purchase debt securities. DESCRIPTION OF COMMON STOCK We may, at our option, elect to offer common stock. The following description of our common stock is only a summary. We encourage you to read our Restated Certificate of Incorporation which has been filed with the Commission and is incorporated by reference into this prospectus. As of the date of this prospectus, we are authorized to issue up to 150,000,000 shares of common stock, par value $0.01 per share. As of May 30, 2000, there were 65,867,974 shares of common stock outstanding. Holders of our common stock are entitled to one vote per share on all matters to be voted upon by the stockholders. Cumulative voting is not permitted. Subject to preferences of any preferred stock that may be issued in the future, the holders of our common stock are entitled to receive such dividends as may be declared by our Board of Directors. We are currently restricted under the terms of our credit agreements and indentures governing our existing notes from paying dividends above certain limited amounts to holders of our common stock. In the event of a liquidation, dissolution or winding up of our company, and subject to preferences of any preferred stock that may be issued in the future, holders of our common stock are entitled to receive pro rata all of the assets of our company available for distribution. There are no redemption or sinking fund provisions applicable to our common stock. All outstanding shares of common stock are fully paid and non-assessable, and the shares of common stock offered, when issued, will be fully paid and non-assessable. Transfer Agent and Registrar The transfer agent and registrar for our common stock is The Bank of New York, located in New York, New York. Listing Our common stock is listed for trading on the New York Stock Exchange under the symbol "LEA." DESCRIPTION OF PREFERRED STOCK We have the authority to issue up to 15,000,000 shares of preferred stock, par value $0.01 per share. As of May 30, 2000, there were no shares of preferred stock outstanding. Our Board of Directors is authorized at any time to: - issue one or more series of preferred stock; - determine the designation for any series by number, letter or title that shall distinguish the series from any other series of preferred stock; and - determine the number of shares in any series. 5
7 We may, at our option, elect to offer a series of preferred stock. The summary of terms of the preferred stock in this prospectus is not complete. You should refer to the certificate of amendment to our Restated Certificate of Incorporation for the applicable series of preferred stock, if any, which will be filed with the Commission. Our Board of Directors is authorized to determine, for each series of preferred stock, and the prospectus supplement will set forth with respect to such series the following information: - whether dividends on that series of preferred stock will be cumulative, noncumulative, or partially cumulative; - the dividend rate (or method for determining the rate); - the liquidation preference per share of that series of preferred stock, if any; - any conversion provisions applicable to that series of preferred stock; - any redemption or sinking fund provisions applicable to that series of preferred stock; - the voting rights of that series of preferred stock, if any; and - the terms of any other preferences or rights, if any, applicable to that series of preferred stock. DESCRIPTION OF DEPOSITORY SHARES General We may, at our option, elect to offer receipts ("depository receipts") for depository shares, each of which will represent a fractional interest in a share of a particular series of a class of preferred stock, as specified in the applicable prospectus supplement. Preferred stock of each series of each class represented by depository shares will be deposited with a bank or trust company selected by us under a deposit agreement (a "deposit agreement") among us, the depository and the holders from time to time of the depository receipts. The depository will be the transfer agent, registrar and dividend disbursing agent for the depository shares. Subject to the terms of the deposit agreement, each owner of a depository receipt will be entitled, in proportion to the fractional interest of a share of the particular series of a class of preferred stock represented by the depository shares evidenced by such depository receipt, to all the rights and preferences of the preferred stock represented by such depository shares (including dividend, voting, conversion, redemption and liquidation rights). The depository shares will be evidenced by depository receipts issued pursuant to the applicable deposit agreement. Holders of depository receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges. The summary of terms of the depository shares contained in this prospectus is not complete. You should refer to the forms of the deposit agreement, our Restated Certificate of Incorporation and the certificate of amendment for the applicable series of preferred stock that are, or will be, filed with the Commission. Dividends And Other Distributions The depository will distribute all cash dividends or other cash distributions received in respect of the preferred stock to the record holders of the depository receipts evidencing the related depository shares in proportion to the number of such depository receipts owned by those holders on the relevant record date. In the event of a distribution other than in cash, the depository will distribute property received by it to the record holders of depository receipts entitled thereto, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the depository, unless the depository determines that it is not feasible to make such distribution, in which case the depository may, with our approval, sell such property and distribute the net proceeds from such sale to such holders. 6
8 Withdrawal Of Shares Owners of depository shares are entitled, upon surrender of the depository receipts at the corporate trust office of the depository (unless the related depository shares have been previously called for redemption) and payment of any unpaid amounts due the depository, to receive the number of whole shares of preferred stock underlying the depository shares. Holders of depository receipts will be entitled to receive whole shares of the related preferred stock on the basis of the proportion of preferred stock represented by each depository share as specified in the applicable prospectus supplement. Partial shares of preferred stock will not be issued. Such holders of preferred stock will not be entitled to deposit the shares under the deposit agreement or to receive depository receipts evidencing depository shares for the preferred stock. Redemption Of Depository Shares Whenever we redeem preferred stock held by the depository, the depository will redeem as of the same redemption date the number of depository shares representing the preferred stock so redeemed. The redemption price per depository share will be equal to the redemption price and any other amounts per share payable with respect to the preferred stock. If fewer than all of the depository shares are to be redeemed, the depository shares to be redeemed will be selected by the depository by lot. After the date fixed for redemption, the depository shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depository receipts evidencing the depository shares so called for redemption will cease, except the right to receive any moneys payable upon such redemption and any money or other property to which the holders of such depository receipts were entitled upon such redemption upon surrender thereof to the preferred stock depository. Voting Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the depository will mail the information contained in such notice of meeting to the record holders of the depository receipts underlying the preferred stock. Each record holder of depository receipts on the record date (which will be the same date as the record date for the preferred stock) will be entitled to instruct the depository as to the exercise of the voting rights pertaining to the amount of preferred stock underlying such holder's depository shares. The depository will try as far as practicable to vote the amount of preferred stock underlying such depository shares in accordance with such instructions, and we will agree to take all reasonable action which may be deemed necessary by the depository in order to enable the depository to do so. The depository will abstain from voting the amount of preferred stock represented by such depository shares to the extent it does not receive specific instructions from the holders of depository receipts. Liquidation Preference In the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, each holder of a depository receipt will be entitled to the fraction of the liquidation preference accorded each share of preferred stock represented by the depository share evidenced by such depository receipt, as set forth in the applicable prospectus supplement. Amendment And Termination Of The Deposit Agreement The form of depository receipt evidencing the depository shares which represent the preferred stock and any provision of the deposit agreement may at any time be amended by agreement between us and the depository. However, any amendment that materially and adversely alters the rights of the holders of depository receipts will not be effective unless such amendment has been approved by the existing holders of at least a majority of the depository shares evidenced by the depository receipts then outstanding. 7
9 The deposit agreement will automatically terminate if: - all outstanding depository shares have been redeemed; - there is a final distribution in respect of the preferred stock and such distribution is made to the holders of depository receipts; or - each related share of preferred stock is converted into our capital stock not so represented by depository shares. Charges Of Depository We will pay all transfer and other taxes and governmental charges arising solely from the existence of the deposit agreement. In addition, we will pay the fees and expenses of the depository in connection with the performance of its duties under the deposit agreement. However, holders of the depository receipts will pay the fees and expenses of the depository for any duties requested by such holders to be performed which are outside of those expressly provided for in the deposit agreement. Resignation And Removal Of Depository The depository may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the depository, any such resignation or removal to take effect upon the appointment of a successor depository. A successor depository must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. Miscellaneous The depository will forward to holders of depository receipts any reports and communications from us that are received by the depository with respect to the related preferred stock. In addition, the depository will make available for inspection by holders of depository receipts at the principal office of the depository, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depository as the holder of preferred stock. Neither us nor the depository will be liable if either us or it is prevented from or delayed in, by law or any circumstances beyond our control, performing our or their obligations under the deposit agreement. Our obligations and the obligations of the depository under the deposit agreement will be limited to performance in good faith and without gross negligence or willful misconduct of our respective duties, and will not be obligated to prosecute or defend any legal proceeding in respect of any depository receipts or depository shares unless satisfactory indemnity is furnished. We and the depository may rely on written advice of counsel or accountants, or information provided by persons presenting preferred stock represented thereby for deposit, holders of depository receipts or other persons believed to be competent to give such information, and on documents believed to be genuine and signed by a proper party. If the depository shall receive conflicting claims, requests or instructions from any holders of depository receipts, on the one hand, and us, on the other hand, the depository shall be entitled to act on such claims, requests or instructions received from us. DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON STOCK, PREFERRED STOCK OR DEBT SECURITIES We expect the following provisions will generally apply to warrants we may offer, unless we specify otherwise in the applicable prospectus supplement. We may issue warrants for the purchase of common stock, preferred stock or debt securities (collectively "warrants"). Warrants may be issued independently or together with common stock, preferred stock or debt securities and may be attached to or separate from any offered securities. Each series of warrants will be 8
10 issued under a separate warrant agreement (a "warrant agreement") to be entered into between us and a bank or trust company, as warrant agent (the "warrant agent"). The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of certain provisions of the warrants is not complete. You should refer to the provisions of the warrant agreement that will be filed with the Commission in connection with the offering of warrants for the complete terms of the warrant agreement. General If we offer warrants to purchase common stock, preferred stock or debt securities, the related prospectus supplement will describe the terms of the warrants, including the following (as applicable): - the title of the warrants; - the offering price, if any; - the aggregate number of warrants; - the designation, terms and principal amount of the common stock, preferred stock or debt securities purchasable upon exercise of the warrants and the initial price at which such securities may be purchased upon exercise; - the date on which the right to exercise the warrants shall commence and the date on which such right shall expire; - if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; - if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; - if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; - a discussion of certain federal income tax considerations, if applicable; - the redemption or call provisions, if any; - the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; - the antidilution provisions of the warrants; and - any other terms of the warrants, including terms, procedures, and limitations relating to the exchange and exercise of the warrants. The shares of common or preferred stock issuable upon exercise of the warrants will, when issued in accordance with the warrant agreement, be fully paid and nonassessable. No Rights Holders of warrants will not be entitled, by virtue of being such holders, to any rights of holders of the underlying securities. For example, holders of warrants will have no rights to: - vote or consent; - receive dividends; - payments of principal of and interest, if any, on the securities; - receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or 9
11 - exercise any rights whatsoever as our stockholders. Exchange of Warrant Certificate Warrant Certificates may be exchanged for new warrant certificates of different denominations and may (if in registered form) be presented for registration of transfer at the corporate trust office of the warrant agent, which will be listed in the related prospectus supplement, or at such other office as may be set forth therein. Exercise Of Warrants Warrants may be exercised by surrendering the warrant certificate at the corporate trust office of the warrant agent, with the form of election to purchase on the reverse side of the warrant certificate properly completed and executed, and by payment in full of the exercise price, as set forth in the prospectus supplement. Upon the exercise of warrants, the warrant agent will, as soon as practicable, deliver the securities in authorized denominations in accordance with the instructions of the exercising warrant holder and at the sole cost and risk of such holder. If less than all of the warrants evidenced by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining amount of warrants. DESCRIPTION OF DEBT SECURITIES We expect the following description of certain general terms and provisions will generally apply to any debt securities we may offer. "Debt securities" may include senior debt, senior subordinated debt or subordinated debt. The particular terms of the debt securities offered by any prospectus supplement, and the extent, if any, to which such general provisions do not apply to the debt securities will be described in the prospectus supplement relating to such debt securities. We may issue debt securities from time to time in one or more series under one or more indentures and any indentures supplemental thereto (collectively, the "indenture"), between us and The Bank of New York, as trustee, unless we identify a different trustee in the applicable prospectus supplement (the "trustee"). The terms of the debt securities will include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect on the date of the indenture. The following summary of certain provisions of the indenture is not complete and we refer you to the forms of the indenture, including definitions included in the indenture of certain terms used below, copies of which have been filed as exhibits to the Registration Statement. For purposes of this section, "Description of Debt Securities," only, references to "Lear" include only Lear Corporation and not its subsidiaries. General We may, at our option, issue debt securities in one or more series from time to time. The following summaries set forth certain general terms and provisions of the indenture and the debt securities. The prospectus supplement relating to a series of debt securities being offered will contain the following terms, if applicable: - the title and ranking; - the aggregate principal amount and any limit on such amount; - the price (expressed as a percentage of the principal amount thereof) at which such debt securities will be issued; - maturity date or dates, or the method for determining such date or dates; - interest rate or rates (which may be fixed or variable), or the method by which such rate or rates shall be determined; - the date or dates, or the method for determining such date or dates, from which any such interest will accrue, and the dates on which any such interest will be payable; 10
12 - the place or places where the principal of and interest, if any, on such debt securities will be payable, and where such debt securities may be surrendered for registration of transfer or exchange; - conversion features; - redemption or early repayment provisions; - sinking fund repayment provisions; - authorized denominations; - any applicable subordination provisions; - any guarantees of such securities by our subsidiaries or others; - the currency, currencies or currency units in which such debt securities are denominated and payable, and the terms and conditions relating thereto; - whether the amount of payments of principal of (and premium, if any) or interest, if any, on the debt securities may be determined with reference to an index, formula or other method and the manner in which such amounts shall be determined; - the time period within which, the manner in which and the terms and conditions upon which the purchaser of the securities can select the payment currency; - the provisions, if any, granting special rights to the holders of debt securities upon certain events; - additions to or changes in the Events of Default or covenants of Lear with respect to the debt securities and any change in the right of the trustee or the holders to declare the principal, premium and interest with respect to such securities to be due and payable; - whether and under what circumstances we will pay any additional amounts on such debt securities in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem such debt securities in lieu of making such payment; - form (registered and/or bearer securities), any restrictions applicable to the offer, sale or delivery of bearer securities and the terms, if any, upon which bearer securities may be exchanged for registered securities and vice versa; - the date of any bearer securities or any global security, if other than the date of original issuance of the first security of the series to be issued; - the person to whom and manner in which any interest shall be payable; - whether such securities will be issued in whole or in part in the form of one or more global securities; - the identity of the depository for global securities; - whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the persons entitled thereto; - the terms upon which beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive securities and the terms upon which such exchanges may be made; - the securities exchange(s) on which the securities will be listed; - whether any underwriter(s) will act as market maker(s) for the securities; - if not listed on a securities exchange and no underwriter(s) intend(s) to make a market in the securities, the nature of the exchange market for the securities; - the extent to which a secondary market for the securities is expected to develop; 11
13 - the form (certificated or book-entry); - the form and/or terms of certificates, documents or conditions which may be necessary, if any, for the debt securities to be issuable in final form; and - additional terms not inconsistent with the provisions of the indenture. One or more series of debt securities may be sold at a substantial discount below their stated principal amount bearing no interest or interest at a rate below the market rate at the time of issuance. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed rate debt securities. In such cases, all material United States federal income tax and other considerations applicable to any such series will be described in the applicable prospectus supplement. We may issue debt securities where the purchase price or amount of principal and/or interest payable is denominated in a foreign currency, currencies or units. The restrictions, elections, general tax considerations, specific terms and other information with respect to such issue of debt securities and such foreign currency, currencies or units will be set forth in the applicable prospectus supplement. We will comply with Section 14(e) under the Securities Exchange Act, to the extent applicable, and any other tender offer rules under the Securities Exchange Act which may then be applicable, in connection with any obligation of Lear to purchase debt securities at the option of the holders thereof. Any such obligation applicable to a series of debt securities will be described in the applicable prospectus supplement. Status of Debt Securities We expect the following provisions will generally apply to debt securities, unless we specify otherwise in the applicable prospectus supplement. The senior debt securities will rank equally with all of our other unsecured and unsubordinated senior indebtedness. The senior subordinated debt securities will be subordinate in right of payment to all of our Senior Indebtedness. With respect to any series of senior subordinated debt securities, "Senior Indebtedness" will mean all Indebtedness (present or future) created, incurred, assumed or guaranteed by us (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 debt securities. Senior Indebtedness shall not include (i) any Indebtedness to any of our Subsidiaries, (ii) any trade payables or (iii) any liability for federal, state, local or other taxes owed or owing by us. The subordinated debt securities will be subordinate in right of payment to all of our Senior Indebtedness. With respect to any series of subordinated debt securities, Senior Indebtedness of the Company will mean all Senior Indebtedness (as defined above) and all indebtedness under any senior subordinated debt securities. Upon any payment or distribution of assets or securities of Lear due to any dissolution, winding up, total or partial liquidation or reorganization or in bankruptcy, insolvency, receivership or other proceeding, the payment of the principal of and interest on the senior subordinated debt securities or the subordinated debt securities will be subordinated in right of payment to any obligations in respect of Senior Indebtedness. No payment may be made on the senior subordinated debt securities or the subordinated debt securities in the event of: - a default in payment or the acceleration of maturity of Senior Indebtedness with a lending commitment or an aggregate principal amount outstanding in excess of $40 million, or - while any judicial proceeding is pending with respect to a default on Senior Indebtedness with a lending commitment or an aggregate principal amount outstanding in excess of $40 million (of which the trustee has received written notice), until such default shall have been cured or waived. By reason of such subordination, in the event of our insolvency, holders of our Senior Indebtedness may receive more, ratably, and holders of the senior subordinated debt securities or subordinated debt securities, as 12
14 applicable, having a claim pursuant to the senior subordinated debt securities or subordinated debt securities, as applicable, may receive less, ratably, than our other creditors. Such subordination will not prevent the occurrence of any event of default (an "Event of Default") in respect of the senior subordinated debt securities or the subordinated debt securities. The applicable prospectus supplement may modify or set forth additional rights that holders of Senior Indebtedness may have against holders of senior subordinated debt securities and subordinated debt securities. If we offer debt securities, the applicable prospectus supplement will set forth the aggregate amount of outstanding indebtedness, if any, as of the most recent practicable date that by the terms of such debt securities would be senior to such debt securities. The applicable prospectus supplement will also set forth any limitation on our issuance of any additional Indebtedness, including Senior Indebtedness. Our debt securities will be direct, unsecured obligations. Creditors of our subsidiaries are entitled to a claim on the assets of such subsidiaries. Consequently, in the event of a liquidation or reorganization of any subsidiary, creditors of the subsidiary are likely to be paid in full before any distribution is made to us and holders of our debt securities, except to the extent that we are recognized as a creditor of such subsidiary, in which case our claims would still be subordinate to any security interests in the assets of such subsidiary and any indebtedness of such subsidiary senior to that held by us. Exchange, Registration, Transfer and Payment We expect payment of principal, premium, if any, and any interest on the debt securities to be payable, and the exchange of and the transfer of debt securities will be registerable, at the office of the trustee or at any other office or agency we maintain for such purpose. We expect to issue debt securities in denominations of U.S. $1,000 or integral multiples thereof. No service charge will be made for any registration of transfer or exchange of the debt securities, but we may require a payment to cover any tax or other governmental charge payable in connection therewith. Global Debt Securities We expect the following provisions to apply to all debt securities, unless we indicate otherwise in the applicable prospectus supplement. The debt securities of a series may be issued in whole or in part in the form of one or more global securities (the "global securities") that will be deposited with a depository we will identify in a prospectus supplement. Each global security will be deposited with the depository and will bear a legend regarding any related restrictions or other matters as may be provided for pursuant to the applicable indenture. No global security may be transferred to, or registered or exchanged for debt securities registered in the name of, any person or entity other than the depository, unless: - the depository has notified us that it is unwilling or unable or is no longer qualified to continue as depository, - we order the trustee that such global security shall be so transferable, registrable and exchangeable, and such transfers shall be registrable, or - other circumstances, if any, as may be described in the applicable prospectus supplement. All debt securities issued in exchange for a global security or any portion thereof will be registered in such names as the depository may direct. The specific terms of the depository arrangement with respect to any portion of a series of debt securities to be represented by a global security will be described in the applicable prospectus supplement. Debt securities which are to be represented by a global security to be deposited with or on behalf of a depository will be represented by a global security registered in the name of such depository or its nominee. Upon the issuance of such global security, and the deposit of such global security with the depository, the depository will credit, on its book-entry registration and transfer system, the respective principal amounts of the debt securities represented by such global security to the accounts of institutions that have accounts with such depository or its nominee ("participants"). The accounts to be credited will be designated by the underwriters or agents of such debt securities or by us, if such debt securities are offered and sold directly by us. 13
15 Ownership of beneficial interests in such global security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests in such global security will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the depository or its nominee for such global security or by participants or persons that hold through participants. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in certificated form. The foregoing limitations and such laws may impair the ability to transfer beneficial interests in such global securities. So long as the depository, or its nominee, is the registered owner of such global security, such depository or such nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by such global security for all purposes under the indenture. Payment of principal of, and premium and interest, if any, on debt securities will be made to the depository or its nominee as the registered owner or bearer as the case may be of the global security representing such debt securities. Each person owning a beneficial interest in such global security must rely on the procedures of the depository and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under the indenture. If we request any action of holders or if an owner of a beneficial interest in such global security desires to give any notice or take any action a holder is entitled to give or take under the indenture, the depository will authorize the participants to give such notice or take such action, and participants would authorize beneficial owners owning through such participants to give such notice or take such action or would otherwise act upon the instructions of beneficial owners owning through them. The rights of any holder of a debt security to receive payment of principal and premium, if any, of and interest on such debt security, on or after the respective due dates expressed or provided for in such debt security, or to institute 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 holders. Neither we, the trustee, any paying agent nor the security registrar for such debt securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of the global security for such debt securities or for maintaining, supervising or receiving any records relating to such beneficial ownership interests. We expect that the depository or its nominee, upon receipt of any payment of principal, premium or interest, will credit immediately participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security for such debt securities as shown on the records of such depository or its nominee. We also expect that payments by participants to owners of beneficial interests in such global security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such participants. If the depository for a global security representing debt securities of a particular series is at any time unwilling or unable to continue as depository and we do not appoint a successor depository within 90 days, we will issue debt securities of such series in definitive form in exchange for such global security. In addition, we may at any time and in our sole discretion determine not to have the debt securities of a particular series represented by one or more global securities and, in such event, will issue debt securities of such series in definitive form in exchange for all of the global securities representing debt securities of such series. Covenants Limitation on Liens Except as set forth in the applicable prospectus supplement, the indenture will provide that, with respect to each series of debt securities, we will not, nor will we permit any of our Subsidiaries to, create, incur, or permit to exist, any Lien on any of our or their respective properties or assets, whether now owned or hereafter acquired, or upon any income or profits therefrom, without effectively providing that such series of debt 14
16 securities shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: - Liens existing as of the Closing Date; - Liens granted after the Closing Date on any assets or properties of Lear or any of our Subsidiaries securing Indebtedness of Lear created in favor of the holders of such series; - Liens securing our Indebtedness which is incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under the indenture; provided that such Liens do not extend to or cover any property or assets of Lear or any of our Subsidiaries other than the property or assets securing the Indebtedness being refinanced and that the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced; - Permitted Liens; - Liens on shares of capital stock of Subsidiaries of Lear, and the proceeds thereof, securing obligations under Lear's senior credit facilities; - Liens on receivables subject to a Receivable Financing Transaction; - Liens arising in connection with industrial development bonds or other industrial development, pollution control or other tax-favored or government-sponsored financing transactions; - Extensions, renewals, substitutions and replacements of any Lien described above; and - Other Liens in respect of Indebtedness of Lear and our Subsidiaries in an aggregate principal amount at any time not exceeding 10% of Consolidated Assets at such time. Limitation on Sale and Lease-Back Transactions Except as set forth in the applicable prospectus supplement, the indenture will provide that, with respect to each series of debt securities, Lear will not, nor will we permit any of our 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 Lear or any of our Subsidiaries, except such transactions: - entered into prior to the Closing Date, - for the sale and leasing back of any property or asset by a Subsidiary of Lear to Lear or any other Subsidiary of Lear, - involving leases for less than three years, or - 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: (a) Lear or such Subsidiary would be entitled under the "Limitation on Liens" covenant above 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 debt securities of that series, or (b) 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 Lear or any of our Subsidiaries which on the date of original incurrence had a maturity of more than one year. 15
17 Certain Definitions Except as set forth in the applicable prospectus supplement, the following terms shall have the meanings set forth below. "Attributable Value" means in connection with a sale and lease-back transaction, the lesser of (a) the fair market value of the assets subject to such transaction and (b) 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 us) of the obligations of the lessee for rental payments during the term of the related lease. "Closing Date" means the date of the indenture. "Consolidated Assets" means at a particular date, all amounts which would be included under total assets on a consolidated balance sheet of Lear and its Subsidiaries as at such date, determined in accordance with GAAP. "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. "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. "Lien" means any lien, security interest, charge or encumbrance of any kind. "Permitted Liens" means: - Liens on accounts receivable, inventory, patents, trademarks, trade names and other intangible assets, securing Indebtedness of Lear or any of our Subsidiaries; - Liens on assets located outside the United States; - Liens on any asset of Lear or any of our Subsidiaries created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; - (a) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of property (including shares of stock), including capital lease transactions in connection with any such acquisition, and (b) Liens existing on property at the time of acquisition thereof or at the time of acquisition by Lear or a Subsidiary of Lear of any person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that, with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon; - Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; - Liens upon specific items of goods and proceeds of any person securing such person's obligations in respect of bankers' acceptances issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods; - Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; - Liens on life insurance policies granted to secure Indebtedness of Lear or any of our Subsidiaries against the cash surrender value thereof; 16
18 - Liens encumbering customary initial deposits and margin deposits and other Liens in the ordinary course of business, in each case securing Indebtedness of Lear under interest or equity swap obligations and currency agreements and forward contract option futures contracts, futures options or similar agreements or arrangements designed to protect Lear or any of our Subsidiaries from fluctuations in interest rates, currency exchange rates or the price of commodities; - Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by Lear or any of our Subsidiaries in the ordinary course of business; - Liens for taxes, assessments, governmental charges or claims which are being contested in good faith by appropriate proceedings, promptly instituted and diligently conducted, if a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor; - statutory Liens of landlords and carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's, or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate process of law, if a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor; - Liens in favor of Lear or any of our Subsidiaries; - 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; - 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, utility payments and other obligations of a like nature incurred in the ordinary course of business; - 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 Lear and our Subsidiaries taken as a whole; - attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings fully covered by insurance or involving, individually or in the aggregate, no more than $40,000,000 at any one time, 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; - 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; - statutory Liens and rights of offset arising in the ordinary course of business of Lear and our Subsidiaries; and - Liens in connection with leases or subleases granted to others and the interest or title of a lessor or sublessor, other than Lear or any of its Subsidiaries, under any lease. "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 Lear 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 such Special Purpose Subsidiary, in each case without any guarantee by Lear or any of its Restricted Subsidiaries, other than the Special Purpose Subsidiary. "Special Purpose Subsidiary" means any wholly owned Restricted Subsidiary of Lear created by Lear for the sole purpose of facilitating a Receivable Financing Transaction. 17
19 "Subsidiary" of any person means: - 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 - 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. Certain Other Covenants With respect to any series of senior subordinated debt securities, we will agree not to issue indebtedness which is subordinated in right of payment to any of our other indebtedness and which is not expressly made to rank equally with, or subordinate and junior in right of payment to, the senior subordinated debt securities. Unless otherwise indicated in this prospectus or a prospectus supplement, the debt securities will not have the benefit of any other covenants that limit or restrict the business or operations of Lear or any of our Subsidiaries, the pledging of the assets of Lear or any of our Subsidiaries or the incurrence of indebtedness by us or any of our Subsidiaries. The applicable prospectus supplement will describe any material covenants in respect of a series of debt securities. Other than the covenants included in the indenture as described above or as described in the applicable prospectus supplement, there are no covenants or other provisions in the indenture providing holders of debt securities additional protection in the event of a highly leveraged transaction, a recapitalization transaction or a change of control of our company. The covenants described in this prospectus or in a prospectus supplement may apply to all of our Subsidiaries or to only those Subsidiaries that are defined as "restricted," in each case as set forth in the applicable prospectus supplement. Consolidation, Merger and Sale of Assets Except as set forth in the applicable prospectus supplement, the indenture will provide that Lear 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: - the person formed by or surviving any such consolidation or merger (if other than Lear), 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; - the person formed by or surviving any such consolidation or merger (if other than Lear), or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made, assumes all of our obligations under the debt securities and the indenture; and - immediately after such transaction, and giving effect thereto, no Default (as defined in the indenture) or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, we 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 we are the surviving entity. Events of Default Unless otherwise specified in the applicable prospectus supplement, the following events will constitute Events of Default under the indenture with respect to debt securities of any series: - failure to pay principal of any debt security of that series when due and payable at maturity, upon acceleration, redemption or otherwise; - failure to pay any interest on any debt security of that series when due, and the Default continues for 30 days; 18
20 - any other Event of Default, as defined in the debt securities of that series, occurs and is continuing; - failure to comply with any of our other agreements in the debt securities of that series or in the indenture, other than covenants or agreements included in the indenture solely for the benefit of other series of debt securities, and the Default continues for a period of 30 days after either the trustee or the holders of at least 25% in principal amount of the then outstanding debt securities of that series have given written notice as provided in the indenture; and - certain events of bankruptcy, insolvency or reorganization. If an Event of Default with respect to outstanding debt securities of any series (other than an Event or Default relating to certain events of bankruptcy, insolvency or reorganization, in which case the unpaid principal amount of, and any accrued and unpaid interest on, all debt securities of that series are due and payable immediately) shall occur and be continuing, either the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of that series by notice, as provided in the indenture, may declare the unpaid principal amount of, and any accrued and unpaid interest on, all debt securities of that series to be due and payable immediately. However, at any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of the outstanding debt securities of that series may, under certain circumstances, rescind and annul such acceleration. For information as to waiver of defaults, see "Amendment, Supplement and Waiver" below. The indenture will provide that, subject to the duty of the trustee during an Event of Default to act with the required standard of care, the trustee will be under no obligation to exercise any of its rights or powers under the applicable indenture at the request or direction of any of the holders, unless such holders shall have offered to the trustee reasonable security or indemnity. Subject to certain provisions, including those requiring security or indemnification of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series. We will be required to furnish to the trustee under the indenture annually a statement as to the performance by us of our obligations under that indenture and as to any default in such performance. Discharge of Indenture and Defeasance Except as otherwise set forth in the applicable prospectus supplement, we may terminate our obligations under the debt securities of any series, and the corresponding obligations under the indenture when: - we irrevocably deposit with the trustee funds or United States government obligations in an amount certified to be sufficient (without reinvestment thereof) to pay at maturity all outstanding debt securities of such series, including all interest thereon other than destroyed, lost or stolen debt securities of such series which have not been replaced or paid; - all outstanding debt securities of such series have been delivered (other than destroyed, lost or stolen debt securities of such series which have not been replaced or paid) to the trustee for cancellation; or - all outstanding debt securities of any series have become due and payable whether at stated maturity, early redemption or otherwise, and in any case we have paid all other sums payable under the indenture. In addition, we may terminate substantially all our obligations under the debt securities of any series and the corresponding obligations under the indenture if - we deposit, or cause to be deposited with the trustee, in trust an amount of cash or United States government obligations maturing as to principal and interest in such amounts and at such times as are 19
21 certified to be sufficient to pay principal of and interest on the then outstanding debt securities of such series to maturity or redemption, as the case may be; - such deposit will not result in a breach of, or constitute a Default under, the indenture; - no Default or Event of Default shall have occurred and be continuing on the date of deposit and no bankruptcy Event of Default or event which with the giving of notice or the lapse of time would become a bankruptcy Event of Default shall have occurred and be continuing on the 91st day after such date; - we deliver to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that the holders of the debt securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of our exercise of such option and shall be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised; and - certain other conditions are met. We shall be released from our obligations with respect to the covenants described under "Covenants" and "Certain Other Covenants" (including covenants described in a prospectus supplement) and any Event of Default occurring because of a default with respect to such covenants as they related to any series of debt securities if: - we deposit or cause to be deposited with the trustee in trust an amount of cash or United States government obligations certified to be sufficient to pay and discharge when due the entire unpaid principal of and interest on all outstanding debt securities of any series; - such deposit will not result in a breach of, or constitute a Default under, the indenture; - no Default or Event of Default shall have occurred and be continuing on the date of deposit and no bankruptcy Event of Default or event which with the giving of notice or the lapse of time would become a bankruptcy Event of Default shall have occurred and be continuing on the 91st day after such date; - we deliver to the trustee an opinion of counsel to the effect that the holders of the debt securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of our exercise of such option and shall be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised; and - certain other conditions are met. Upon satisfaction of such conditions, our obligations under the indenture with respect to the debt securities of such series, other than with respect to the covenants and Events of Default referred to above, shall remain in full force and effect. Notwithstanding the foregoing, no discharge or defeasance described above shall affect the following obligations to or rights of the holders of any series of debt securities: - rights of registration of transfer and exchange of debt securities of such series, - rights of substitution of mutilated, defaced, destroyed, lost or stolen debt securities of such series, - rights of holders of debt securities of such series to receive payments of principal thereof and premium, if any, and interest thereon when due, - rights, obligations, duties and immunities of the trustee, - rights of holders of debt securities of such series as beneficiaries with respect to property deposited with the trustee and payable to all or any of them, and 20
22 - our obligations to maintain an office or agency in respect of the debt securities of such series. Transfer and Exchange A holder may transfer or exchange debt securities in accordance with the indenture. The registrar for the debt securities may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the indenture. The registrar is not required to transfer or exchange any debt security selected for redemption or any debt security for a period of 15 days before a selection of debt security to be redeemed. The registered holder of a debt security may be treated as the owner of it for all purposes. Amendment, Supplement and Waiver Subject to certain exceptions, the terms of the indenture or the debt securities may be amended or supplemented by us and the trustee with the written consent of the holders of at least a majority in principal amount of such then outstanding debt securities of each series affected by the amendment with each series voting as a separate class and any existing Default may be waived with the consent of the holders of at least a majority in principal amount of the then outstanding debt securities of the series affected thereby. Without the consent of any holder of the debt securities, we and the trustee may amend the terms of the indenture or the debt securities to: - cure any ambiguity, defect or inconsistency, - provide for the assumption of our obligations to holders of the debt securities by a successor corporation, - provide for uncertificated debt securities in addition to certificated debt securities, - make any change that does not adversely affect the rights of any holder of the debt securities in any material respect, - add to our covenants or take any other action for the benefit of the holders of the debt securities or - comply with any requirement of the Commission in connection with the qualification of the indenture under the Trust Indenture Act. Without the consent of each holder of debt securities affected, we may not: - reduce the principal amount of debt securities the holders of which must consent to an amendment, supplement or waiver of any provision of the indenture; - reduce the rate or extend the time for payment of interest on any debt security; - reduce the principal of or change the fixed maturity of any debt securities; - change the date on which any debt security may be subject to redemption or repurchase, or reduce the redemption or repurchase price therefor; - make any debt security payable in currency other than that stated in the debt security; - modify or change any provision of the indenture affecting the subordination or ranking of any debt security in a manner which adversely affects the holder thereof; - impair the right of any holder to institute suit for the enforcement of any payment in or with respect to any such debt security; or - make any change in the foregoing amendment provisions which require each holder's consent. The consent of the holders of debt securities is not necessary to approve the particular form of any proposed amendment to any indenture. It is sufficient if any consent approves the substance of the proposed amendment. 21
23 Replacement Securities Any mutilated certificate representing a debt security or a certificate representing a debt security with a mutilated coupon appertaining thereto will be replaced by us at the expense of the holder thereof upon surrender of such certificate to the trustee. Certificates representing debt securities or coupons that become destroyed, stolen or lost will be replaced by us at the expense of the holder upon delivery to us and the trustee of evidence of any destruction, loss or theft thereof satisfactory to us and the trustee, provided that neither we nor the trustee has been notified that such certificate or coupon has been acquired by a bona fide purchaser. In the case of any coupon which becomes destroyed, stolen or lost, such coupon will be replaced by issuance of a new certificate representing the debt security in exchange for the certificate representing the debt security to which such coupon appertains. In the case of a destroyed, lost or stolen certificate representing the debt security or coupon, an indemnity satisfactory to the trustee and us may be required at the expense of the holder of such debt security before a replacement certificate will be issued. Governing Law The indenture, the debt securities and any coupons are governed by, and will be construed in accordance with the internal laws of, the State of New York. Regarding the Trustee Unless we otherwise identify in the prospectus supplement relating to any series of debt securities, the trustee with respect to such series will be The Bank of New York. The indenture and provisions of the Trust Indenture Act incorporated by reference therein contain certain limitations on the rights of the trustee, should it become a creditor of Lear, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim, as security or otherwise. The trustee and its affiliates may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates; provided, however, that if it acquires any conflicting interest, as defined in the Trust Indenture Act, it must eliminate such conflict or resign. The holders of a majority in principal amount of the then outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee. The Trust Indenture Act and the indenture provide that in case an Event of Default shall occur, and be continuing, the trustee will be required, in the exercise of its rights and powers, to use the degree of care and skill of a prudent man in the conduct of his own affairs. Subject to such provision, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities issued thereunder, unless they have offered to the trustee indemnity satisfactory to it. PLAN OF DISTRIBUTION The following summary of our plan for distributing the securities offered under this prospectus will be supplemented by a description of our specific plan for each offering in the applicable prospectus supplement. We may sell the securities being offered hereby in any one or more of the following ways: - directly to investors; - to investors through agents; - to broker-dealers as principals, - through underwriting syndicates led by one or more managing underwriters as we may select from time to time, - through one or more underwriters acting alone, or - through or in connection with the settlement of hedging transactions. 22
24 The applicable prospectus supplement will set forth the terms of the offering of the securities, including the following: - the name or names of any underwriters; - the purchase price and the proceeds we will receive from such sale; - any underwriting discounts and other items constituting underwriters' compensation; - any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; and - any securities exchanges on which the securities of such series may be listed. If underwriters are used in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices, determined at the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. The obligations of the underwriters to purchase securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all the securities of a series if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Securities may be sold directly by us or through agents designated by us from time to time. Any agent involved in the offer or sale of the securities in respect of which this prospectus is delivered will be named, and any commissions payable by us to such agent will be set forth, in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. We may authorize agents or underwriters to solicit offers by certain types of institutions to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The conditions to these contracts and the commissions payable for solicitation of such contracts will be set forth in the applicable prospectus supplement. Agents and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which the agents or underwriters may be required to make relating to such liabilities. Agents and underwriters may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business. Some or all of the offered securities, other than our common stock, will be a new issue or issues of securities with no established trading market. Any common stock offered by this prospectus will be listed on the New York Stock Exchange (or the then other principal trading market). Unless otherwise indicated in a prospectus supplement, we do not currently intend to list any offered debt securities, preferred stock, depository shares or warrants on any securities exchange. No assurance can be given that the underwriters, dealers or agents, if any, involved in the sale of the offered securities will make a market in such offered securities. Whether or not any of the offered securities are listed on a national securities exchange or the underwriters, dealers or agents, if any, involved in the sale of the offered securities make a market in such offered securities, no assurance can be given as to the liquidity of the trading market for such offered securities. To facilitate an offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In addition, to cover such over-allotments or short positions, the persons may purchase in the open market or exercise the over-allotment option granted to such persons. In addition, such persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to 23
25 dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities above independent market levels. The persons participating in any offering are not required to engage in these activities, and may end any of these activities at any time. Certain of the underwriters, dealers or agents and their associates may engage in transactions with and perform services for us and our subsidiaries and affiliates in the ordinary course of business for which they receive customary compensation. LEGAL MATTERS The validity of the securities offered hereby will be passed upon for us by Winston & Strawn. Certain legal matters may be passed upon for any agents or underwriters by counsel for such agents or underwriters identified in the applicable prospectus supplement. EXPERTS The audited financial statements and schedule of Lear as of December 31, 1999 and 1998, and for each of the years in the three year period ended December 31, 1999, incorporated by reference into this prospectus, have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are included herein in reliance upon authority of said firm as experts in giving said reports. The audited historical financial statements of UT Automotive, Inc., formerly a wholly-owned operating segment of United Technologies Corporation, as of December 31, 1998 and 1997 and for each of the three years in the period ended December 31, 1998, incorporated in this prospectus by reference to Lear's Current Report on Form 8-K dated May 4, 1999, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The financial statements of the Seating Business formerly of the Delphi Interior Systems Division of Delphi Automotive Systems Corporation as of December 31, 1997 and 1996 and for each of the three years in the period ended December 31, 1997, incorporated by reference in this prospectus from Lear's Current Report on Form 8-K/A dated September 1, 1998, and filed with the Commission on November 17, 1998, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. 24
26 ------------------------------------------------------ ------------------------------------------------------ UNTIL , ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. --------------------------- TABLE OF CONTENTS PAGE ---- Where You Can Find More Information... 2 Lear.................................. 3 Forward-Looking Statements............ 3 Use of Proceeds....................... 3 Ratio of Earnings to Fixed Charges.... 4 The Securities We May Offer........... 5 Plan of Distribution.................. 22 Legal Matters......................... 24 Experts............................... 24 ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ ---------------------- PROSPECTUS ---------------------- [LEAR CORPORATION LOGO] $1,000,000,000 DEBT SECURITIES, COMMON STOCK, PREFERRED STOCK, DEPOSITORY SHARES, WARRANTS TO PURCHASE COMMON STOCK, PREFERRED STOCK OR DEBT SECURITIES , 2000 ------------------------------------------------------ ------------------------------------------------------
27 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth all fees and expenses payable by the Registrant in connection with the issuance and distribution of the securities being registered hereby (other than underwriting discounts and commissions). All of such expenses, except the SEC filing fee, are estimated. SEC filing fee.............................................. $ 264,000 Rating agency fees.......................................... 200,000 Trustee fees and expenses (including counsel fees).......... 40,000 Blue Sky fees (including counsel fees)...................... 10,000 Legal fees and expenses..................................... 300,000 Accounting fees and expenses................................ 300,000 Printing and engraving...................................... 150,000 Miscellaneous............................................... 100,000 ---------- Total..................................................... $1,354,000 ========== ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action. In an action brought to obtain a judgment in the corporation's favor, whether by the corporation itself or derivatively by a stockholder, the corporation may only indemnify for expenses, including attorney's fees, actually and reasonably incurred in connection with the defense or settlement of such action, and the corporation may not indemnify for amounts paid in satisfaction of a judgment or in settlement of the claim. In any such action, no such person shall have been adjudged liable to the corporation except as claim was brought. In any type of proceeding, the indemnification may extend to judgments, fines and amounts paid in settlement, actually and reasonably incurred in connection with such other proceeding, as well as to expenses. The statute does not permit indemnification unless the person seeking indemnification has acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the corporation and, in the case of criminal actions or proceedings, the person had no reasonable cause to believe his conduct was unlawful. The statute contains additional limitations applicable to criminal actions and to actions brought by or in the name of the corporation. The determination as to whether a person seeking indemnification has met the required standard of conduct is to be made (1) by a majority vote of a quorum of disinterested members of the board of directors, (2) by independent legal counsel in a written opinion, if such a quorum does not exist or if the disinterested directors so direct, or (3) by the stockholders. Lear's Restated Certificate of Incorporation and Bylaws require Lear to indemnify its directors to the fullest extent permitted under Delaware law. Pursuant to employment agreements entered into by Lear with certain of its executive officers and other key employees, Lear must indemnify such officers and employees in the same manner and to the same extent that Lear is required to indemnify its directors under the Lear's Bylaws. Lear's Restated Certificate of Incorporation limits the personal liability of a director to the corporation or its stockholders to damages for breach of the director's fiduciary duty. Lear has purchased insurance on behalf of its directors and officers against certain liabilities that may be asserted against, or incurred by, such persons in their capacities as directors or officers of the registrant, or that II-1
28 may arise out of their status as directors or officers of the registrant, including liabilities under the federal and state securities laws. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES A list of exhibits is set forth on the Index to Exhibits. ITEM 17. UNDERTAKINGS 1. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement, provided, that notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of the securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that the undertakings set forth in paragraphs (1)(i) and (1)(ii) above do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned Registrant hereby undertakes that: (a) For purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. II-2
29 (c) For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-3
30 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Southfield, State of Michigan on May 31, 2000. LEAR CORPORATION By: /s/ KENNETH L. WAY ------------------------------------ Kenneth L. Way Chairman of the Board of Directors and Chief Executive Officer Each person whose signature appears below hereby severally constitutes and appoints Kenneth L. Way, James H. Vandenberghe and Donald J. Stebbins, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign for him or her and in his or her name, place and stead in any and all capacities indicated below, the Registration Statement on Form S-3 filed herewith, and any and all pre-effective and post-effective amendments to said Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary fully to all intents and purposes as he or she might or could do in person thereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. NAME TITLE DATE ---- ----- ---- /s/ KENNETH L. WAY Chairman of the Board of Directors and Chief May 31, 2000 - ------------------------------------ Executive Officer (Principal Executive Kenneth L. Way Officer) /s/ ROBERT E. ROSSITER President and Chief Operating Officer and May 31, 2000 - ------------------------------------ Director Robert E. Rossiter /s/ JAMES H. VANDENBERGHE Vice Chairman of the Board of Directors May 31, 2000 - ------------------------------------ James H. Vandenberghe /s/ DONALD J. STEBBINS Senior Vice President and Chief Financial May 31, 2000 - ------------------------------------ Officer (Principal Financial Officer) Donald J. Stebbins /s/ DAVID C. WAJSGRAS Vice President and Corporate Controller - ------------------------------------ (Principal Accounting Officer) David C. Wajsgras /s/ LARRY W. MCCURDY Director May 31, 2000 - ------------------------------------ Larry W. McCurdy /s/ IRMA B. ELDER Director May 31, 2000 - ------------------------------------ Irma B. Elder /s/ DAVID L. BING Director May 31, 2000 - ------------------------------------ David L. Bing II-4
31 NAME TITLE DATE ---- ----- ---- /s/ ROY E. PARROTT Director May 31, 2000 - ------------------------------------ Roy E. Parrott /s/ ROBERT W. SHOWER Director May 31, 2000 - ------------------------------------ Robert W. Shower /s/ DAVID P. SPALDING Director May 31, 2000 - ------------------------------------ David P. Spalding /s/ JAMES A. STERN Director May 31, 2000 - ------------------------------------ James A. Stern II-5
32 INDEX TO EXHIBITS EXHIBIT NUMBER EXHIBIT - ------- ------- *1.1 -- Form of Underwriting Agreement. 3.1 (1) -- Restated Certificate of Incorporation. 4.1 -- Form of indenture relating to the senior debt securities. 4.2 -- Form of indenture relating to the subordinated debt securities. 4.3 (2) -- Form of specimen certificate of common stock. *4.4 -- Form of warrant agreement. *4.5 -- Form of warrant certificate. *4.6 -- Form of preferred stock certificate. *4.7 -- Form of deposit agreement. *4.8 -- Form of depository receipt. 5.1 -- Opinion of Winston & Strawn, special counsel to Lear. 12.1 -- Computation of ratio of earnings to fixed charges. 23.1 -- Consent of Arthur Andersen LLP. 23.2 -- Consent of PricewaterhouseCoopers LLP. 23.3 -- Consent of Deloitte & Touche LLP. 23.4 -- Consent of Winston & Strawn (included in Exhibit 5.1). 24.1 -- Powers of Attorney (included on the signature pages hereto). 25.1 -- Statement of Eligibility and Qualification of Trustee of the Bank of New York. - ------------------------- (1) Incorporated by reference to Exhibit 3.1 to Lear's quarterly report on Form 10-Q for the fiscal quarter ended March 30, 1996. (2) Incorporated by reference to Lear's Registration Statement on Form 8-A filed on April 1, 1994, as amended by Amendment No. 1 on Form 8-A/A filed on April 5, 1994. * To be filed by a report on Form 8-K or another report under the Exchange Act. II-6
1 EXHIBIT 4.1 ================================================================================ INDENTURE Dated as of , 199 ------------- -- between LEAR CORPORATION, as Issuer and -----------------------, as Trustee ---------------- Senior Notes ---------------- ================================================================================
2 Contents, p. 1 TABLE OF CONTENTS Page ---- ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE......................................................1 SECTION 1.01. Definitions.......................................................................1 SECTION 1.02. Other Definitions.................................................................6 SECTION 1.03. Incorporation by Reference of Trust Indenture Act.................................6 SECTION 1.04. Rules of Construction.............................................................6 ARTICLE II THE SECURITIES..................................................................................6 SECTION 2.01. Unlimited in Amount, Issuable in Series, Form and Dating..........................6 SECTION 2.02. Execution and Authentication......................................................9 SECTION 2.03. Registrar and Paying Agent.......................................................10 SECTION 2.04. Paying Agent to Hold Assets in Trust.............................................11 SECTION 2.05. Holder Lists.....................................................................11 SECTION 2.06. Registration of Transfer and Exchange. ..........................................11 SECTION 2.07. Replacement Securities...........................................................12 SECTION 2.08. Outstanding Securities...........................................................12 SECTION 2.09. Treasury Securities..............................................................13 SECTION 2.10. Temporary Securities.............................................................13 SECTION 2.11. Cancellation.....................................................................13 SECTION 2.12. CUSIP Numbers....................................................................13 SECTION 2.13. Defaulted Interest...............................................................13 ARTICLE III REDEMPTION.....................................................................................14 SECTION 3.01. Notices to Trustee...............................................................14 SECTION 3.02. Selection of Securities to Be Redeemed. .........................................14 SECTION 3.03. Notice of Redemption.............................................................15 SECTION 3.04. Effect of Notice of Redemption...................................................15 SECTION 3.05. Deposit of Redemption Price......................................................15 SECTION 3.06. Securities Redeemed in Part......................................................16
3 Contents, p. 2 ARTICLE IV COVENANTS......................................................................................16 SECTION 4.01. Payment of Securities............................................................16 SECTION 4.02. Maintenance of Office or Agency..................................................16 SECTION 4.03. SEC Reports......................................................................17 SECTION 4.04. Compliance Certificate...........................................................17 SECTION 4.05. Taxes............................................................................17 SECTION 4.06. Corporate Existence..............................................................17 SECTION 4.07. Limitation on Liens..............................................................17 SECTION 4.08. Limitation on Sale and Lease-Back Transactions...................................18 ARTICLE V MERGER, ETC....................................................................................18 SECTION 5.01. When Company May Merge, etc......................................................18 SECTION 5.02. Successor Corporation Substituted................................................19 ARTICLE VI DEFAULTS AND REMEDIES..........................................................................19 SECTION 6.01. Events of Default................................................................19 SECTION 6.02. Acceleration.....................................................................20 SECTION 6.03. Other Remedies...................................................................20 SECTION 6.04. Waiver of Past Defaults..........................................................21 SECTION 6.05. Control by Majority..............................................................21 SECTION 6.06. Limitation on Suits..............................................................21 SECTION 6.07. Rights of Holders To Receive Payment.............................................21 SECTION 6.08. Collection Suit by Trustee.......................................................21 SECTION 6.09. Trustee May File Proofs of Claim.................................................22 SECTION 6.10. Priorities.......................................................................22 SECTION 6.11. Undertaking for Costs............................................................23 ARTICLE VII TRUSTEE........................................................................................23 SECTION 7.01. Duties of Trustee................................................................23 SECTION 7.02. Rights of Trustee................................................................24 SECTION 7.03. Individual Rights of Trustee.....................................................24 SECTION 7.04. trustee's Disclaimer.............................................................24 SECTION 7.05. Notice of Defaults...............................................................25 SECTION 7.06. Reports by Trustee to Holders....................................................25
4 Contents, p. 3 SECTION 7.07. Compensation and Indemnity.......................................................25 SECTION 7.08. Replacement of Trustee...........................................................26 SECTION 7.09. Successor Trustee by Merger, Etc. ...............................................27 SECTION 7.10. Eligibility; Disqualification....................................................27 SECTION 7.11. Preferential Collection of Claims Against the Company............................27 ARTICLE VIII DISCHARGE OF INDENTURE.........................................................................27 SECTION 8.01. Satisfaction and Discharge of Indenture..........................................27 SECTION 8.02. Application of Trust Funds; Indemnification......................................28 SECTION 8.03. Legal Defeasance of Securities of any Series.....................................29 SECTION 8.04. Covenant Defeasance..............................................................30 SECTION 8.05. Repayment to Company.............................................................31 ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................................32 SECTION 9.01. Without Consent of Holders.......................................................32 SECTION 9.02. With Consent of Holders..........................................................32 SECTION 9.03. Compliance with Trust Indenture Act..............................................33 SECTION 9.04. Revocation and Effect of Consents................................................33 SECTION 9.05. Notation on or Exchange of Securities............................................33 SECTION 9.06. Trustee to Sign Amendment, etc...................................................33 ARTICLE X MISCELLANEOUS..................................................................................34 SECTION 10.01. Trust Indenture Act Controls....................................................34 SECTION 10.02. Notices.........................................................................34 SECTION 10.03. Communication by Holders with Other Holders.....................................35 SECTION 10.04. Certificate and Opinion as to Conditions Precedent..............................35 SECTION 10.05. Statements Required in Certificate or Opinion...................................35 SECTION 10.06. Rules by Trustee and Agents.....................................................35 SECTION 10.07. Legal Holidays..................................................................35 SECTION 10.08. Duplicate Originals.............................................................36 SECTION 10.09. Governing Law...................................................................36 SECTION 10.10. No Adverse Interpretation of Other Agreements...................................36 SECTION 10.11. Successors......................................................................36 SECTION 10.12. Severability....................................................................36 SECTION 10.13. Counterpart Originals...........................................................37
5 CROSS-REFERENCE TABLE Indenture TIA Section Section - ----------- ---------- Section 310(a)(1)..............................................................................................7.10 (a)(2)..............................................................................................7.10 (a)(3)..............................................................................................N.A. (a)(4)..............................................................................................N.A. (a)(5)..............................................................................................7.10 (b).................................................................................................7.08; 7.10 (c).................................................................................................N.A. Section 311(a).................................................................................................7.11 (b).................................................................................................7.11 (c).................................................................................................N.A. Section 312(a).................................................................................................2.05 (b).................................................................................................10.03 (c).................................................................................................10.03 Section 313(a).................................................................................................7.06 (b)(1)..............................................................................................N.A. (b)(2)..............................................................................................7.06 (c).............................................................................................7.06; 12.02; (d).................................................................................................7.06 Section 314(a)(1), (2), (3)....................................................................................4.03 (a)(4)..............................................................................................4.04 (b).................................................................................................N.A (c)(1)..............................................................................................10.04 (c)(2)..............................................................................................10.04 (c)(3)..............................................................................................N.A. (d).................................................................................................N.A. (e).................................................................................................10.05 (f).................................................................................................N.A. Section 315(a).................................................................................................7.01(b) (b)...............................................................................................7.05; 10.02 (c).................................................................................................7.01(a) (d).................................................................................................7.01(c) (e).................................................................................................6.11 Section 316(a)(last sentence)..................................................................................2.09 (a)(1)(A)...........................................................................................6.05 (a)(1)(B)...........................................................................................6.04 (a)(2)..............................................................................................N.A. (b).................................................................................................6.07 (c).................................................................................................9.04 Section 317(a)(1)..............................................................................................6.08
6 2 (a)(2)..............................................................................................6.09 (b).................................................................................................2.04 Section 318(a).................................................................................................10.01 - ------------------- N.A. means Not Applicable NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the indenture.
7 INDENTURE dated as of __________, 199__, between LEAR CORPORATION, a Delaware corporation (the "Company"), as issuer, and _________________, a __________________, as trustee (the "Trustee"). 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 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. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of each series of the securities: ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions. "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 (a) the fair market value of the assets subject to such transaction and (b) 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. "Board of Directors" means, with respect to any person, the Board of Directors of a 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
8 2 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 as defined in Section 10.07. "Company" means the party named as such in this indenture, or any other obligor under this indenture, until a successor replaces it pursuant to this indenture and thereafter means the successor. "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 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 _________________________________________________________________. "Default" means any event which is, or after notice or lapse of time or both would be, an Event of Default. "Event of Default" has the meaning provided in Section 6.01. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute. "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
9 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 Security" 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. "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. "Lien" means any lien, security interest, charge or encumbrance of any kind. "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, the Chief Executive Officer, the 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 who is reasonably acceptable to the trustee. The counsel may be an employee of or counsel to the Company. "Original Issue Discount Security" means any Security which provides that an amount less than its principal amount is due and payable upon acceleration after an Event of Default. "Permitted Liens" means (i) Liens on accounts receivable, inventory, patents, trademarks, trade names and other intangible assets, securing Indebtedness of the Company or any of the Company's Subsidiaries; (ii) Liens on assets located outside the United States; (iii) Liens on any asset of the Company or any of the Company's Subsidiaries created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (iv) (a) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of property (including shares of stock), including capital lease transactions in connection with any such acquisition, and (b) Liens existing on property at the time of acquisition thereof or at the time of acquisition by the Company or a Subsidiary of the Company of any person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that, with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon; (v) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (vi) Liens upon specific items of goods and proceeds of any person securing such person's obligations in respect of bankers' acceptances issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods; (vii) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (viii) Liens on life insurance policies granted to secure Indebtedness of the Company or any of the Company's Subsidiaries against the cash surrender value thereof; (ix) Liens encumbering customary initial deposits and margin deposits and other Liens in the ordinary course of business, in each case securing Indebtedness of the Company under interest or equity swap obligations and currency agreements and forward contract option futures contracts, futures options or similar agreements or arrangements designed to protect the Company or any of the Company's Subsidiaries from fluctuations in interest rates, currency exchange rates or the price of commodities; (x) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of the Company's Subsidiaries in the ordinary course of business; (xi) Liens for taxes, assessments, governmental charges or claims which are being contested in good faith by appropriate proceedings, promptly instituted and diligently conducted, if a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor; (xii) statutory Liens of landlords and carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's, or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate process of law, if a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor; (xiii) Liens in favor of the Company or any of the Company's Subsidiaries; (xiv) 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; (xv) 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, utility payments and other obligations of a like nature incurred in the ordinary course of business; (xvi) 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 the Company's Subsidiaries taken as a whole; (xvii) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings fully covered by insurance or involving, individually or in the aggregate, no more than $40,000,000 at any one time, 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; (xviii) 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; (xix) statutory Liens and rights of offset arising in the ordinary course of business of the Company and the Company's Subsidiaries; and (xx) 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 the Company's Subsidiaries, under any lease.
10 4 "Person" or "person" means any individual, corporation, partnership, joint venture, trust, association, limited liability company, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "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 such Special Purpose Subsidiary, in each case without any guarantee by Lear or any of its Restricted Subsidiaries, other than the Special Purpose Subsidiary. "Redemption Date" means, with respect to any Security to be redeemed, the date fixed for such redemption pursuant to this indenture.
11 5 "Redemption Price" has the meaning provided in Section 3.03. "SEC" means the Securities and Exchange Commission and any government agency succeeding to its functions. "Securities" means the means the securities authenticated and delivered under this indenture. "Securities Act" means the Securities Act of 1933, as amended. "Special Purpose Subsidiary" means any wholly owned of the Company created by the Company for the sole purpose of facilitating a Receivable Financing Transaction. "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, own 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. "Trustee" means the party named as such above until a successor becomes such pursuant to this indenture and thereafter means or includes each party who is then a trustee hereunder, and if at any time there is more than one such party, "trustee" as used with respect to the securities of any series means the trustee with respect to securities of that series. If trustees with respect to different series of securities are trustees under this indenture, nothing herein shall constitute the trustees co-trustees of the same trust, and each trustee shall be the trustee of a trust separate and apart from any trust administered by any other trustee with respect to a different series of securities. "Trust Officer" means any officer in the corporate trust department of the trustee or any other officer of the trustee assigned by the trustee to administer this indenture. "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 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.
12 6 SECTION 1.02. Other Definitions. Defined in Term Section ---- ----------- "Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . 6.01 "Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 "Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . 10.07 "Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . 2.03 "Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03 SECTION 1.03. 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 1.04. 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) words in the singular include the plural, and in the plural include the singular; (v) provisions apply to successive events and transactions; and (vi) statements relating to the payment of principal and interest shall include the payment, premium (if any) and interest. ARTICLE II THE SECURITIES
13 7 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
14 8 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 (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
15 9 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 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 Company's Subsidiaries or others; (y) Any conversion or exchange features applicable to the securities; and (z) Any other terms of the series. SECTION 2.02. Execution and Authentication. Two Officers shall sign the securities for the Company by manual or facsimile signature. The Company's seal shall be reproduced on the securities and may be in facsimile form. 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.
16 10 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 authenticate securities for original issue upon a written order of the Company signed by one Officer of the Company. 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. If the Company shall establish pursuant to Section 2.01 that the securities of a series are to be issued in the form of one or more Global securities, then the Company shall execute and the trustee shall authenticate and deliver one or more Global securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the securities of such series to be issued in the form of Global Securities and not yet canceled, (ii) shall be registered in the name of the depositary for such Global Security or Securities or the nominee of such depositary, (iii) shall be delivered by the trustee to such depositary or pursuant to such depositary's instructions, and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for securities in definitive registered form, this Security may not be transferred except as a whole by the depositary to the nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any such nominee to a successor depositary or a nominee of such successor depositary." Each depositary designated pursuant to Section 2.01 must, at the time of its designation and at all times while it services as depositary, be a clearing agency registered under the Exchange Act. SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency where securities of a particular series 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 for a particular series of securities shall keep a register of the securities of that series and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional Paying Agents for each series of 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
17 11 this indenture which 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. The Company hereby initially appoints the trustee as Registrar and Paying Agent for each series of securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time the securities of that series are first issued. SECTION 2.04. Paying Agent to Hold Assets in Trust. The Company shall require each Paying Agent other than the trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of 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) and shall notify the trustee of any failure by the Company (or any other obligor on the securities) 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 a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. SECTION 2.05. Holder Lists. The trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders, separately by series, and shall otherwise comply with TIA Section 312(a). If the trustee is not the registrar, the Company shall furnish to the trustee on or before 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, separately by series, relating to such interest payment date or request, as the case may be. SECTION 2.06. Registration of Transfer and Exchange. When securities of a series are presented to the registrar or a co-registrar with a request to register their transfer or to exchange them for an equal principal amount of securities of other denominations, the registrar or co-registrar shall register the transfer or make the exchange if its requirements for such transaction are met. To permit registrations of transfer and exchanges, the Company shall issue and the trustee shall authenticate securities at the registrar's or co-registrar's request. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with registration, transfer or exchange of securities other than exchanges pursuant to Section 2.10, 3.06 or 9.05 not involving any transfer. The registrar or co-registrar shall not be required to register the transfer or exchange of (i) any Security of a particular series selected for redemption in whole or in part,
18 12 except the unredeemed portion of any Security of that series being redeemed in part, or (ii) any Security of a particular series during a period beginning at the opening of business 15 days before the day of any selection of securities of that series for redemption under Section 3.02 and ending at the close of business on the date of selection. Any Holder of a beneficial interest in a Global Security shall, by acceptance of such beneficial interest, agree that transfers of beneficial interest 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 system. SECTION 2.07. 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 of the same series if the requirements of the trustee and the Company are met; provided that, if any such Security has been called for redemption in 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. 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 of the same series. SECTION 2.08. Outstanding Securities. The securities of any series outstanding at any time are all the securities of that series authenticated by the trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.07, 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 of the securities are considered paid under Section 4.01, such securities shall cease to be outstanding and interest on them shall cease to accrue. Except as provided in Section 2.09, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds such Security.
19 13 For each series of Original Issue Discount Securities, the principal amount of such securities that shall be deemed to be outstanding and used to determine whether the necessary Holders have given any request, demand, authorization, direction, notice, consent or waiver shall be the principal amount of such securities that could be declared to be due and payable upon acceleration upon an Event of Default as of the date of such determination. When requested by the trustee, the Company will advise the trustee of such amount, showing its computations in reasonable detail. SECTION 2.09. 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 2.10. Temporary Securities. Until definitive securities are ready for delivery, the Company may prepare and execute and the trustee shall authenticate 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. SECTION 2.11. 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 destroy such securities (subject to the record retention requirements of the Exchange Act). Certification of the destruction of all cancelled securities shall be promptly delivered to the Company. 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 2.12. 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 2.13. Defaulted Interest. If the Company fails to make a payment of interest on any series of securities, it shall pay such defaulted interest plus (to the extent lawful) any
20 14 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, payment date, and amount of such interest to be paid. SECTION 2.14. 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 entitled to consent to any supplement, amendment or waiver permitted by this indenture. If a record date is fixed, the Holders of Securities of that series 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 of that series required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period. ARTICLE III REDEMPTION SECTION 3.01. Notices to Trustee. If the Company elects to redeem securities of any series pursuant to any optional redemption provisions thereof, it shall notify the trustee of the intended Redemption Date and the principal amount of securities of that series to be redeemed. The Company shall give each notice provided for in this Section and an Officers' Certificate at least 30 days before the Redemption Date (unless a shorter period shall be satisfactory to the trustee).
21 15 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 that series to be redeemed from the outstanding securities of that series to be redeemed by a method that complies with the requirements of any exchange on which the securities of that series are listed, or, if the securities of that series are not listed on an exchange, on a pro rata basis or by lot, which in any case shall be in accordance with a method the trustee considers fair and appropriate. Except as otherwise provided as to any particular series of securities, securities and portions thereof that the trustee selects shall be in amounts equal to the minimum authorized denomination for securities of the series to be redeemed or any integral multiple thereof. Provisions of this indenture that apply to securities called for redemption also apply to portions of securities called for redemption. The trustee shall notify the Company promptly in writing of the securities or portions of securities to be called for redemption. SECTION 3.03. Notice of Redemption. At least 15 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 of the series to be redeemed and shall state: (1) the Redemption Date; (2) the redemption price fixed in accordance with the terms of the securities of the series to be redeemed, plus accrued interest, if any, to the date fixed for redemption (the "Redemption Price"); (3) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued; (4) the name and address of the Paying Agent; (5) that securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price; (6) that, unless the Company defaults in payment of the Redemption Price, interest on securities called for redemption ceases to accrue on and after the Redemption Date; and (7) the CUSIP number, if any, of the securities to be redeemed.
22 16 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 Security shall not affect the validity of the proceeding for the redemption of any other Security. SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed, securities called for redemption become 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. On or before the Redemption Date, the Company shall deposit with the trustee or with the Paying Agent (or if the Company or any Subsidiary of the Company is acting as its own Paying Agent, the Company or such Subsidiary shall segregate and hold in trust) money sufficient to pay the Redemption Price on all securities to be redeemed on that date other than securities or portions thereof called for redemption on that date which have been delivered by the Company to the trustee for cancellation. The Paying Agent shall promptly return to the Company any 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 issue and the trustee shall authenticate for the Holder at the expense of the Company, a new Security of the same series 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 or an Affiliate, holds as of 11:00 a.m. New York time on that date immediately available funds designated for and sufficient to pay all principal and interest then due. To the extent lawful, the Company shall pay interest on overdue principal and overdue installments of interest at the rate per annum borne by the applicable series of securities. 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 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
23 17 any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. 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 Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03. SECTION 4.03. SEC Reports. 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 TIA Section 314(a). 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 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 10.04. 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
24 18 be required to preserve any such right, license or franchise if the Board of Directors or management of the Company shall determine 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. it permit any of its Subsidiaries to, create, incur, 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 each series of securities shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (i) Liens existing as of the date hereof; (ii) Liens granted after the Closing Date on any assets or properties of the Company or any of the Company's Subsidiaries securing Indebtedness of the Company created in favor of the holders of such series; (iii) Liens securing our Indebtedness which is incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under the indenture; provided that such Liens do not extend to or cover any property or assets of the Company or any of the Company's Subsidiaries other than the property or assets securing the Indebtedness being refinanced and that the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced; (iv) Permitted Liens; (v) Liens on shares of capital stock of Subsidiaries of the Company, and the proceeds thereof, securing obligations under the Company's senior credit facilities; (vi) Liens on receivables subject to a Receivable Financing Transaction; (vii) Liens arising in connection with industrial development bonds or other industrial development, pollution control or other tax-favored or government-sponsored financing transactions; (viii) extensions, renewals, substitutions and replacements of any Lien described above; and (ix) Other Liens in respect of Indebtedness of the Company and the Company's 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 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 Subsidiaries (except such transactions (i) entered into prior to the date hereof, (ii) for the sale and leasing back of any property or asset by a Subsidiary of the Company to the Company or any other 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 (a) the Company or such Subsidiary would be entitled under Section 4.07 to create, incur 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 of that series, or (b) 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 Subsidiaries which by its terms matures not earlier than one year after the date of such repayment.
25 19 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 disposition has 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 disposition has been made, assumes by supplemental indenture satisfactory in form to the trustee all 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, 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 shall have become such in the manner described in this Article V shall be discharged from all obligations and covenants under this indenture and the securities and may be dissolved, wound up or liquidated. ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.01. Events of Default. An "Event of Default" occurs with respect to securities of any particular series, unless in the establishing Board Resolutions, Officers' Certificate or supplemental indenture hereto, it is provided that such series shall not have the benefit of any such Event of Default, when any of the following occurs:
26 20 (i) the Company defaults in the payment of interest on any Security of that series when it becomes due and payable and such default continues for a period of 30 days; (ii) the Company defaults in the payment of the principal of any Security of that series when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (iii) the Company fails to comply with any of its other agreements or covenants in, or provisions of, the securities of that series or this indenture and the Default continues for the period and after the notice specified below; (iv) the Company 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 (v) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company in an involuntary case or proceeding, (B) appoints a Custodian for the Company or for all or substantially all of the Company's property, or (C) orders the liquidation of the Company; and in case of (v) the order or decree remains unstayed and in effect for 60 days. The term "Bankruptcy Law" means Title 11 of the U.S. Code or any similar Federal or state law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. A Default under clause (iii) of this Section 6.01 is not an Event of Default with respect to a particular series of securities until the trustee notifies the Company in writing, or the Holders of at least 25% in principal amount of the outstanding securities of that series notify the Company and the trustee, in writing, of the Default, and the Company does not cure the Default within 30 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a "Notice of Default". SECTION 6.02. Acceleration. If an Event of Default (other than an Event of Default specified in clause (iv) or (v) of Section 6.01) occurs and is continuing, the trustee or the Holders of at least 25% of the principal amount of the outstanding securities of that series, by written notice to the Company may declare due and payable 100% of the principal amount (or, in the case of Original Issue Discount securities, such lesser amount as may be provided for in such securities) of the securities of that series plus any accrued interest to the date of payment. Upon a declaration of acceleration, such principal (or such lesser amount) and accrued interest to the date of payment shall be due and payable. If an Event of Default specified in clause (iv) or (v) of Section
27 21 6.01 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 of the outstanding principal amount of the securities of that series by written notice to the trustee may rescind 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 of that series 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 occurs and is continuing with respect to any series of securities, the trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or interest on the securities of that series or to enforce the performance of any provision of the securities of that series or this indenture. 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, the Holders of at least a majority in principal amount of the outstanding securities of any series by notice to the trustee may waive an existing Default or Event of Default and its consequences with respect to that series, except a Default in the nonpayment of the principal of or interest on any Security of that series (provided, however, that the Holders of a majority in principal amount of the then outstanding securities of any series 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 cured and ceases. SECTION 6.05. Control by Majority. The Holders of at least a majority in principal amount of the outstanding securities of any series 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 conflicts with law or this indenture, that the trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the trustee in personal liability. The trustee may take any other action which it deems proper which is not inconsistent with any such direction. SECTION 6.06. Limitation on Suits. A Holder of securities of any series may not pursue a remedy with respect to this indenture or the securities of that series unless: (i) the Holder gives to the trustee written notice of a continuing Event of Default with respect to such series; (ii) the Holders of at least 25% in principal amount of the outstanding securities of that series
28 22 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 the outstanding securities of that series 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, 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. SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(i) or (ii) occurs and is continuing with respect to securities of any series, the trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal (or such portion of the principal as may be specified as due upon acceleration at that time in the terms of that series of securities) and accrued interest, if any, remaining unpaid on the outstanding securities of that series, 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 7.07. 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), 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 7.07. Nothing herein contained shall be deemed to authorize the trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the 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.
29 23 SECTION 6.10. Priorities. If the trustee collects any money 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 7.07, 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 any particular series of securities for amounts due and unpaid on the securities of such series for principal and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the securities of such series for principal and interest, respectively; and THIRD: to the Company or any other obligors on the securities of that series, as their interests may appear, or 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. 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 or a suit by Holders of more than 10% in principal amount of the outstanding securities of that series. ARTICLE VII TRUSTEE SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the trustee shall exercise such of the rights and powers vested in it by this indenture, and 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
30 24 and conforming to the requirements of this indenture. However, 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. (c) The trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own wilful 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. (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. SECTION 7.02. Rights of Trustee. Subject to TIA Section 315(a) through (d): (a) The trustee may 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 which it believes to be authorized or within the rights or powers conferred upon it by this indenture, unless the trustee's conduct constitutes negligence.
31 25 (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. 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 an Affiliate of the Company with the same rights it would have if it were not trustee. Any Agent may do the same with like rights. However, the trustee is subject to Sections 7.10 and 7.11. SECTION 7.04. Trustee's Disclaimer. The trustee makes no representation as to the validity or adequacy of this indenture or the securities, it shall not be accountable for the Company's use of the proceeds from the securities and it shall not be responsible for any statement in the securities other than its certificate of authentication. SECTION 7.05. Notice of Defaults. If a Default or Event of Default with respect to the securities of any series occurs and is continuing, and if it is 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 7.06. 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 TIA Section 3.13 at the times and in the manner provided by the TIA, which shall initially 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 of any series are listed on any stock exchange. SECTION 7.07. 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 connection with the enforcement of any remedies hereunder.
32 26 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 shall indemnify and hold harmless the trustee against any and all loss and liability 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 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 negligence, wilful misconduct or bad faith. To secure the Company's payment obligations in this Section 7.07, 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. Such obligations shall survive the satisfaction and discharge of the indenture. When the trustee incurs expenses or renders services after an Event of Default specified in clause (iv) or (v) of Section 6.01 occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. SECTION 7.08. Replacement of Trustee. A resignation or removal of the trustee and appointment of a successor trustee shall become effective only upon the successor trustee's acceptance of appointment as provided in this Section 7.08. The trustee may resign and be discharged from the trust hereby created with respect to one or more or all series of securities by so notifying the Company in writing. The Holders of a majority in principal amount of the then outstanding securities of any series may remove the trustee with respect to that series by so notifying the trustee and the Company in writing. The Company may remove the trustee with respect to one or more or all series of securities if: (i) the trustee fails to comply with Section 7.10 or TIA Section 310; (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 (iv) the trustee becomes incapable of acting. If, as to any series of securities, 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 that series of 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 of that series may appoint a successor trustee to replace the successor trustee appointed by the Company.
33 27 Any Holder of securities of that series 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. A successor trustee as to any series of securities 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 7.07. Notwithstanding replacement of the trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee with respect to expenses, losses and liabilities incurred by it prior to such replacement. In case of the appointment hereunder of a successor trustee with respect to the securities of one or more (but not all) series, the Company, the retiring trustee and each successor trustee with respect to the securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring trustee with respect to the securities of that or those series to which the appointment of such successor trustee relates, (2) shall contain such provisions as shall be necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring trustee with respect to the securities of that or those series as to which the retiring trustee is not retiring shall continue to be vested in the retiring trustee, and (3) shall add to or change any of the provisions of this indenture as shall be necessary or desirable to provide for or facilitate the administration of the trusts hereunder by more than one trustee; provided, however, that nothing herein or in such supplemental indenture shall constitute such trustees to be co-trustees of the same trust and that each such trustee shall be trustee of a trust hereunder separate and apart from any trust hereunder administered by any other such trustee. Upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring trustee shall become effective to the extent provided therein and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring trustee with respect to the securities of that or those series to which the appointment of such successor trustee relates. SECTION 7.09. Successor Trustee by Merger, Etc. Subject to Section 7.10, 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 as to that series of securities. SECTION 7.10. Eligibility; Disqualification. Each series of securities shall always have a trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The trustee
34 28 as to any series of securities shall always have a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition. The trustee is subject to TIA Section #310(b). SECTION 7.11. Preferential Collection of Claims Against the Company. The trustee is subject to TIA Section #311(a), excluding any creditor relationship listed in TIA Section #311(b). A trustee who has resigned or been removed shall be subject to TIA Section #311(a) to the extent indicated therein. 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 (a) either (i) all securities theretofore authenticated and delivered (other than securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the trustee for cancellation; or (ii) all such securities not theretofore delivered to the trustee for cancellation (1) have become due and payable, or (2) will become due and payable at their stated maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in the name, and at the expense, of the Company, or (4) are deemed paid and discharged pursuant to Section 8.03, as applicable; and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such securities not theretofore delivered to the trustee for cancellation, for principal and interest to the date of such deposit (in the case of securities which have become due and payable on or prior to
35 29 the date of such deposit) or to the stated maturity or redemption date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) 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 have been complied with. Notwithstanding the satisfaction and discharge of this indenture, the obligations of the Company to the trustee under Section 7.07, and, if money shall have been deposited with the trustee pursuant to clause (a) of this Section or if money or obligations shall have been deposited with or received by the trustee pursuant to Section 8.03, the obligations of the trustee under Section 8.02 and Section 8.05 shall survive. SECTION 8.02. Application of Trust Funds; Indemnification. (a) Subject to the provisions of Section 8.05, all money deposited with the trustee pursuant to Section 8.01, all money and U.S. Government Obligations deposited with the trustee pursuant to Section 8.03 or 8.04 and all money received by the trustee in respect of U.S. Government Obligations deposited with the trustee pursuant to Section 8.03 or 8.04, 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 (including the Company acting as its own 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 or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.03 and 8.04. (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 8.03 or 8.04 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 8.03 or 8.04 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.
36 30 SECTION 8.03. Legal Defeasance of Securities of any Series. Unless this Section 8.03 is otherwise specified to be inapplicable to securities of any series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding securities of any such series 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 outstanding securities of such series, 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, from the trust funds described in subparagraph (d) hereof, (x) payment of the principal of an each installment of principal of or interest on the outstanding securities of such series on the stated maturity of such principal of or interest and (y) the benefit of any mandatory sinking fund payments applicable to the securities of such series on the day on which such payments are due and payable in accordance with the terms of this indenture and the securities of such series; (ii) the Company's obligations with respect to such securities of such series under Sections 2.03, 2.06 and 2.07; and (iii) the rights, powers, trust and immunities of the trustee hereunder and the duties of the trustee under Section 8.02 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 benefit of the Holders of such 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 and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if any, on all the securities of such series on the dates such installments of interest or principal are due; (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 the securities of such series shall have occurred 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(iv) or (v) with respect to the Company occurs which is continuing at the end of such period;
37 31 (d) the Company shall have delivered to the trustee an Officers' Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) 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 the securities of such series 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 the securities of such series 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 have been complied with. SECTION 8.04. Covenant Defeasance. Unless this Section 8.04 is otherwise inapplicable to securities of any series, 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, 4.04, 4.05, 4.07 and 4.08 as well as any additional covenants contained in a supplemental indenture hereto for a particular series of securities or a Board Resolution or an Officers' Certificate delivered pursuant to Section 2.01 (and the failure to comply with any such provisions shall not constitute a Default or Event of Default under Section 6.01) and the occurrence of any event described in clause (e) of Section 6.01 shall not constitute a Default or Event of Default hereunder, with respect to the securities of such series, provided that the following conditions shall have been satisfied: (a) With reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.03) with the trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such 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 certified public accountants expressed in a written certification thereof delivered to the trustee, to pay principal and interest, if any, on and any
38 32 mandatory sinking fund in respect of the securities of such series on the dates such installments of interest or principal are due; (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 the securities of such series shall have occurred 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(iv) or (v) 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 Opinion of Counsel confirming that Holders of the securities of such series 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; (e) 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 the securities of such series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and (f) 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 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. The Company and the trustee may amend this indenture or the securities without the consent of any Holder: (i) to cure any ambiguity, defect or inconsistency or make any change required to qualify the indenture under the TIA, provided that such change does not adversely affect the rights hereunder of any Holder in any material respect; (ii) to comply with Section 5.01; (iii) to provide for uncertificated securities in addition to certificated securities; (iv) to make any change that does not adversely affect in any material respect the rights hereunder of any
39 33 Holder; (v) to add to, change or eliminate any of the provisions of this indenture in respect of one or more series of securities, provided, however, that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such security with respect to such provision or (B) shall become effective only when there is no outstanding Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provisions; or (vi) to establish additional series of securities as permitted by Section 2.01. SECTION 9.02. With Consent of Holders. The Company and the trustee as to any series of securities may amend this indenture or the securities of that series or waive compliance in any particular instance with any provision of this indenture or the securities of that series, in each case with the written consent of the Holders of at least a majority in principal amount of the then outstanding securities of that series. Without the consent of each Holder affected, an amendment or waiver under this Section may not: (i) reduce the principal amount of securities, whose Holders must consent to an amendment or waiver; (ii) reduce the rate of or change the time for payment of interest on any Security; (iii) change the date on which any Security may be subject to redemption or repurchase, or reduce the redemption or repurchase price therefor; (iv) make any Security payable in currency other than that stated in the Security; or (v) make any change in Section 6.04, 6.07 or this sentence. It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. An amendment or waiver under this Section which waives, changes or eliminates any covenant or other provision of this indenture which has expressly been included solely for the benefit of one or more particular series of securities, or which modifies the rights of the Holders of securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this indenture of the Holders of securities of any other series. The Company will mail supplemental indentures to Holders upon request. 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 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.
40 34 SECTION 9.04. Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security 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 2.14, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the trustee receives written notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective on receipt by the trustee of consents from the Holders of the requisite percentage principal amount of the outstanding securities of any series, and thereafter shall bind every Holder of securities of that series. SECTION 9.05. Notation on or Exchange of Securities. If an amendment or waiver changes the terms of a Security: (a) the trustee may require the Holder of the 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 (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. 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 entitled to receive 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 MISCELLANEOUS SECTION 10.01. 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 10.02. Notices. Any notice or communication to the Company 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: Lear Corporation
41 35 21557 Telegraph Road Southfield, Michigan 48086-5008 Attention of Chief Financial Officer with a copy to: Winston & Strawn 35 West Wacker Drive Chicago, Illinois 60601 Attention of John L. MacCarthy Daniel A. Ninivaggi If to the trustee: Attention: The Company 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 mails a notice or communication to Holders, it shall mail a copy to the trustee and each Agent at the same time. SECTION 10.03. Communication by Holders with Other Holders. Holders may communicate pursuant to TIA Section #312(b) with other Holders with respect to their rights under this indenture or the securities. The Company, the trustee, the registrar and anyone else shall have the protection of TIA Section 312(c). SECTION 10.04. 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 10.05) stating that, in the opinion of the signers, all conditions precedent and
42 36 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 10.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with. SECTION 10.05. Statements Required in Certificate or Opinion. Each certificate (other than certificates provided pursuant to Section 4.04) or opinion with respect to compliance with a condition or covenant provided for in this indenture shall include: (i) a statement that the person making such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such 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 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 10.06. 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 10.07. 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. SECTION 10.08. Duplicate Originals. The parties may sign any number of copies of this indenture. One signed copy is enough to prove this indenture. SECTION 10.09. Governing Law. The internal laws of the State of New York shall govern this indenture and the securities, without regard to the conflicts of law rules thereof. SECTION 10.10. 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 subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this indenture. SECTION 10.11. Successors. All agreements of the Company in this indenture and the securities shall bind their respective successors. All agreements of the trustee in this indenture shall bind its successor.
43 37 SECTION 10.12. Severability. In case any provision in this indenture or in the securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
44 38 SECTION 10.13. 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. LEAR CORPORATION, by______________________________ Dated: ___________________________, as trustee, by______________________________ Authorized Signatory Dated:
1 EXHIBIT 4.2 ================================================================================ INDENTURE Dated as of _____________, 199___ between LEAR CORPORATION, as Issuer and _______________________, as Trustee ________________ Subordinated Notes ________________ ================================================================================
2 Contents, p. 1 TABLE OF CONTENTS Page ---- ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . 6 SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARTICLE II THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SECTION 2.01. Unlimited in Amount, Issuable in Series, Form and Dating . . . . . . . . . . . . . . . 7 SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 2.04. Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 2.05. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 2.06. Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 2.07. Replacement Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 2.08. Outstanding Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 2.09. Treasury Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 2.10. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 2.12. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 2.13. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE III REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 3.02. Selection of Securities to Be Redeemed. . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 3.06. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3 Contents, p. 2 ARTICLE IV COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 4.01. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 4.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 4.03. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 4.04. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 4.06. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 4.07. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 4.08. Limitation on Sale and Lease-Back Transactions . . . . . . . . . . . . . . . . . . . . 18 ARTICLE V MERGER, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 5.01. When Company May Merge, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 5.02. Successor Corporation Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARTICLE VI DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 6.07. Rights of Holders To Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARTICLE VII TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4 Contents, p. 3 SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 SECTION 7.09. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 SECTION 7.11. Preferential Collection of Claims Against the Company . . . . . . . . . . . . . . . . . 28 ARTICLE VIII DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 SECTION 8.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 28 SECTION 8.02. Application of Trust Funds; Indemnification . . . . . . . . . . . . . . . . . . . . . . 29 SECTION 8.03. Legal Defeasance of Securities of any Series . . . . . . . . . . . . . . . . . . . . . 29 SECTION 8.04. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 8.05. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 33 SECTION 9.04. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 SECTION 9.05. Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 34 SECTION 9.06. Trustee to Sign Amendment, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 ARTICLE X SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 SECTION 10.01. Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . 34 SECTION 10.02. Priority and Payment Over of Proceeds in Certain Events . . . . . . . . . . . . . . . . 34 SECTION 10.03. Payments May Be Paid Prior to Dissolution . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 10.04. Rights of Holders of Senior Indebtedness Not to Be Impaired . . . . . . . . . . . . . . 36 SECTION 10.05. Authorization to Trustee to Take Action to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 10.06. Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 10.07. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 10.08. Obligations of Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . 37 SECTION 10.09. trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 SECTION 10.10. Right of Trustee to Hold Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 38 ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5 Contents, p. 4 SECTION 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 11.03. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 11.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . 40 SECTION 11.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . 40 SECTION 11.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 11.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 11.08. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 11.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 11.10. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . 41 SECTION 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 11.12. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 11.13. Counterpart Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6 CROSS-REFERENCE TABLE Indenture TIA Section Section - ----------- -------- Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A. (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A. (a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A. Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A. Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03 Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06 (b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A. (b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 12.02; (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06 Section 314(a)(1), (2), (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03 (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. Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a) (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c) (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11 Section 316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05 (a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A. (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04 Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
7 2 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04 Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.01 - ------------------- N.A. means Not Applicable NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the indenture.
8 INDENTURE dated as of __________, 199__, between LEAR CORPORATION, a Delaware corporation (the "Company"), as issuer, and _________________, a __________________, as trustee (the "Trustee"). 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 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. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of each series of the securities: ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions. "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 (a) the fair market value of the assets subject to such transaction and (b) 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. "Board of Directors" means, with respect to any person, the Board of Directors of a 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
9 2 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 as defined in Section 11.07. "Company" means the party named as such in this indenture, or any other obligor under this indenture, until a successor replaces it pursuant to this indenture and thereafter means the successor. "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 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 _________________________________________________. "Default" means any event which is, or after notice or lapse of time or both would be, an Event of Default. "Event of Default" has the meaning provided in Section 6.01. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute. "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
10 3 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 Security" 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. "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. "Lien" means any lien, security interest, charge or encumbrance of any kind. "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, the Chief Executive Officer, the 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 who is reasonably acceptable to the trustee. The counsel may be an employee of or counsel to the Company. "Original Issue Discount Security" means any Security which provides that an amount less than its principal amount is due and payable upon acceleration after an Event of Default. "Permitted Liens" means (i) Liens on accounts receivable, inventory, patents, trademarks, trade names and other intangible assets, securing Indebtedness of the Company or any Subsidiary of the Company; (ii) Liens on assets located outside the United States of America; (iii) Liens on any asset of the Company or any Subsidiary of the Company created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (iv)(a) Liens
11 4 given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of property (including shares of stock), including capital lease transactions in connection with any such acquisition, and (b) Liens existing on property at the time of acquisition thereof or at the time of acquisition by the Company or a Subsidiary of the Company of any person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that, with respect to clause (a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon; (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (ii) Liens upon specific items of goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (iii) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (iv) Liens on life insurance policies granted to secure Indebtedness of the Company or any Subsidiary of the Company against the cash surrender value thereof; (v) Liens encumbering customary initial deposits and margin deposits and other Liens in the ordinary course of business, in each case securing Indebtedness of the Company under interest or equity swap obligations and currency agreements and forward contract, option, futures contracts, futures options or similar agreements or arrangements designed to protect the Company or any of its Subsidiaries from fluctuations in interest rates, currency exchange rates or the price of commodities; (vi) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business; (vii) Liens for taxes, assessments, governmental charges or claims which are being contested in good faith by appropriate proceedings, promptly instituted and diligently conducted, if a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor; (viii) statutory Liens of landlords and carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's, or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate process of law, if a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor; and (ix) Liens in favor of the Company or any Subsidiary of the Company. (x) 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; (xi) 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, utility payments and other obligations of a like nature incurred in the ordinary course of business; (xii) 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 the Company's Subsidiaries taken as a whole; (xiii) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings fully covered by insurance or involving, individually or in the aggregate, no more than $40,000,000 at any one time, 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; (xiv) 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; (xv) statutory Liens and rights of offset arising in the ordinary course of business of the Company and the Company's Subsidiaries; and (xvi) 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 the Company's Subsidiaries, under any lease. "Person" or "person" means any individual, corporation, partnership, joint venture, trust, association, limited liability company, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "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 Subsidiaries to a Special Purpose Subsidiary and a subsequent sale or pledge of such accounts receivable, or an interest therein, by such Special Purpose Subsidiary, in each case without any guarantee by Lear or any of its Subsidiaries, other than the Special Purpose Subsidiary. "Redemption Date" means, with respect to any Security to be redeemed, the date fixed for such redemption pursuant to this indenture. "Redemption Price" has the meaning provided in Section 3.03.
12 5 "SEC" means the Securities and Exchange Commission and any government agency succeeding to its functions. "Securities" means the means the securities authenticated and delivered under this indenture. "Securities Act" means the Securities Act of 1933, as amended. "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. "Special Purpose Subsidiary" means any wholly owned Subsidiary of the Company created by the Company for the sole purpose of facilitating a Receivable Financing Transaction. "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. "Trustee" means the party named as such above until a successor becomes such pursuant to this indenture and thereafter means or includes each party who is then a trustee hereunder, and if at any time there is more than one such party, "trustee" as used with respect to the securities of any series means the trustee with respect to securities of that series. If trustees with respect to different series of securities are trustees under this indenture, nothing herein shall constitute the trustees co-trustees of the same trust, and each trustee shall be the trustee of a trust separate and apart from any trust administered by any other trustee with respect to a different series of securities. "Trust Officer" means any officer in the corporate trust department of the trustee or any other officer of the trustee assigned by the trustee to administer this indenture.
13 6 "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 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. Other Definitions. Defined in Term Section ---- ----------- "Bankruptcy Law" . . . . . . . . . . . . . . . . . . 6.01 "Custodian" . . . . . . . . . . . . . . . . . . . . . 6.01 "Legal Holiday" . . . . . . . . . . . . . . . . . . . 11.07 "Paying Agent" . . . . . . . . . . . . . . . . . . . 2.03 "Registrar" . . . . . . . . . . . . . . . . . . . . . 2.03 SECTION 1.03. 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 1.04. 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) words in the singular include the plural, and in the plural include the singular; and (v) provisions apply to successive events and transactions. Statements relating to the payment of principal and interest shall include the payment, premium (if any) and interest.
14 7 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;
15 8 (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 (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;
16 9 (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 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 Company's Subsidiaries or others; (y) Any conversion or exchange features applicable to the securities; and (z) Any other terms of the series. SECTION 2.02. Execution and Authentication. Two Officers shall sign the securities for the Company by manual or facsimile signature. The Company's seal shall be reproduced on the securities and may be in facsimile form.
17 10 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 authenticate securities for original issue upon a written order of the Company signed by one Officer of the Company. 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. If the Company shall establish pursuant to Section 2.01 that the securities of a series are to be issued in the form of one or more Global securities, then the Company shall execute and the trustee shall authenticate and deliver one or more Global securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the securities of such series to be issued in the form of Global securities and not yet canceled, (ii) shall be registered in the name of the depositary for such Global Security or securities or the nominee of such depositary, (iii) shall be delivered by the trustee to such depositary or pursuant to such depositary's instructions, and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for securities in definitive registered form, this Security may not be transferred except as a whole by the depositary to the nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any such nominee to a successor depositary or a nominee of such successor depositary." Each depositary designated pursuant to Section 2.01 must, at the time of its designation and at all times while it services as depositary, be a clearing agency registered under the Exchange Act. SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency where securities of a particular series 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 for a particular series of securities shall keep a register of the securities of that series and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional Paying Agents for each series of 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.
18 11 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 which 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. The Company hereby initially appoints the trustee as Registrar and Paying Agent for each series of securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time the securities of that series are first issued. SECTION 2.04. Paying Agent to Hold Assets in Trust. The Company shall require each Paying Agent other than the trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of 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) and shall notify the trustee of any failure by the Company (or any other obligor on the securities) 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 a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. SECTION 2.05. Holder Lists. The trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders, separately by series, and shall otherwise comply with TIA Section 312(a). If the trustee is not the registrar, the Company shall furnish to the trustee on or before 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, separately by series, relating to such interest payment date or request, as the case may be. SECTION 2.06. Registration of Transfer and Exchange. When securities of a series are presented to the registrar or a co-registrar with a request to register their transfer or to exchange them for an equal principal amount of securities of other denominations, the registrar or co-registrar shall register the transfer or make the exchange if its requirements for such transaction are met. To permit registrations of transfer and exchanges, the Company shall issue and the trustee shall authenticate securities at the registrar's or co-registrar's request. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with registration, transfer or exchange of securities other than exchanges pursuant to Section 2.10, 3.06 or 9.05 not involving any transfer.
19 12 The registrar or co-registrar shall not be required to register the transfer or exchange of (i) any Security of a particular series selected for redemption in whole or in part, except the unredeemed portion of any Security of that series being redeemed in part, or (ii) any Security of a particular series during a period beginning at the opening of business 15 days before the day of any selection of securities of that series for redemption under Section 3.02 and ending at the close of business on the date of selection. Any Holder of a beneficial interest in a Global Security shall, by acceptance of such beneficial interest, agree that transfers of beneficial interest 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 system. SECTION 2.07. 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 of the same series if the requirements of the trustee and the Company are met; provided that, if any such Security has been called for redemption in 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. 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 of the same series. SECTION 2.08. Outstanding Securities. The securities of any series outstanding at any time are all the securities of that series authenticated by the trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.07, 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 of the securities are considered paid under Section 4.01, such securities shall cease to be outstanding and interest on them shall cease to accrue. Except as provided in Section 2.09, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds such Security.
20 13 For each series of Original Issue Discount securities, the principal amount of such securities that shall be deemed to be outstanding and used to determine whether the necessary Holders have given any request, demand, authorization, direction, notice, consent or waiver shall be the principal amount of such securities that could be declared to be due and payable upon acceleration upon an Event of Default as of the date of such determination. When requested by the trustee, the Company will advise the trustee of such amount, showing its computations in reasonable detail. SECTION 2.09. 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 2.10. Temporary Securities. Until definitive securities are ready for delivery, the Company may prepare and execute and the trustee shall authenticate 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. SECTION 2.11. 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 destroy such securities (subject to the record retention requirements of the Exchange Act). Certification of the destruction of all cancelled securities shall be promptly delivered to the Company. 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 2.12. 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 2.13. Defaulted Interest. If the Company fails to make a payment of interest on any series of 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
21 14 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, payment date, and amount of such interest to be paid. SECTION 2.14. 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 entitled to consent to any supplement, amendment or waiver permitted by this indenture. If a record date is fixed, the Holders of securities of that series 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 of that series required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period. ARTICLE III REDEMPTION SECTION 3.01. Notices to Trustee. If the Company elects to redeem securities of any series pursuant to any optional redemption provisions thereof, it shall notify the trustee of the intended Redemption Date and the principal amount of securities of that series to be redeemed. The Company shall give each notice provided for in this Section and an Officers' Certificate at least 30 days before the Redemption Date (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 that series to be redeemed from the outstanding securities of that series to be redeemed by a method that complies
22 15 with the requirements of any exchange on which the securities of that series are listed, or, if the securities of that series are not listed on an exchange, on a pro rata basis or by lot, which in any case shall be in accordance with a method the trustee considers fair and appropriate. Except as otherwise provided as to any particular series of securities, securities and portions thereof that the trustee selects shall be in amounts equal to the minimum authorized denomination for securities of the series to be redeemed or any integral multiple thereof. Provisions of this indenture that apply to securities called for redemption also apply to portions of securities called for redemption. The trustee shall notify the Company promptly in writing of the securities or portions of securities to be called for redemption. SECTION 3.03. Notice of Redemption. At least 15 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 of the series to be redeemed and shall state: (1) the Redemption Date; (2) the redemption price fixed in accordance with the terms of the securities of the series to be redeemed, plus accrued interest, if any, to the date fixed for redemption (the "Redemption Price"); (3) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon surrender of such Security, a new Security or securities in principal amount equal to the unredeemed portion will be issued; (4) the name and address of the Paying Agent; (5) that securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price; (6) that, unless the Company defaults in payment of the Redemption Price, interest on securities called for redemption ceases to accrue on and after the Redemption Date; and (7) the CUSIP number, 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 Security shall not affect the validity of the proceeding for the redemption of any other Security.
23 16 SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed, securities called for redemption become 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. On or before the Redemption Date, the Company shall deposit with the trustee or with the Paying Agent (or if the Company or any Subsidiary of the Company is acting as its own Paying Agent, the Company or such Subsidiary shall segregate and hold in trust) money sufficient to pay the Redemption Price on all securities to be redeemed on that date other than securities or portions thereof called for redemption on that date which have been delivered by the Company to the trustee for cancellation. The Paying Agent shall promptly return to the Company any 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 issue and the trustee shall authenticate for the Holder at the expense of the Company, a new Security of the same series 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 or an Affiliate, holds as of 11:00 a.m. New York time on that date immediately available funds designated for and sufficient to pay all principal and interest then due. To the extent lawful, the Company shall pay interest on overdue principal and overdue installments of interest at the rate per annum borne by the applicable series of securities. 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 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 shall fail to maintain any such required office or agency or shall fail to furnish the trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the trustee. 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
24 17 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 Corporate Trust Office of the trustee as one such office or agency of the Company in accordance with Section 2.03. SECTION 4.03. SEC Reports. 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 TIA Section 314(a). 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 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. 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 shall determine 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 Subsidiaries to, create, incur, 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,
25 18 without effectively providing that each series of securities shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (i) Liens existing as of the date hereof; (ii) Liens granted after the Closing Date on any assets or properties of the Company or any of the Company's Subsidiaries securing Indebtedness of the Company created in favor of the holders of such series; (iii) Liens securing our Indebtedness which is incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under the indenture; provided that such Liens do not extend to or cover any property or assets of the Company or any of the Company's Subsidiaries other than the property or assets securing the Indebtedness being refinanced and that the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced; (iv) Permitted Liens; (v) Liens on shares of capital stock of Subsidiaries of the Company, and the proceeds thereof, securing obligations under the Company's senior credit facilities; (vi) Liens on receivables subject to a Receivable Financing Transaction; (vii) Liens arising in connection with industrial development bonds or other industrial development, pollution control or other tax-favored or government-sponsored financing transactions; (viii) Extensions, renewals, substitutions and replacements of any Lien described above; and (ix) Other Liens in respect of Indebtedness of the Company and the Company's 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 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 Subsidiaries (except such transactions (i) entered into prior to the date hereof, (ii) for the sale and leasing back of any property or asset by a Subsidiary of the Company to the Company or any other 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 (a) the Company or such Subsidiary would be entitled under Section 4.07 to create, incur 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 of that series, or (b) 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 Subsidiaries which by its terms matures not earlier than one year after the date of such repayment.
26 19 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 disposition has 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 disposition has been made, assumes by supplemental indenture satisfactory in form to the trustee all 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, 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 shall have become such in the manner described in this Article V shall be discharged from all obligations and covenants under this indenture and the securities and may be dissolved, wound up or liquidated. ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.01. Events of Default. An "Event of Default" occurs with respect to securities of any particular series, unless in the establishing Board Resolutions, Officers' Certificate or supplemental indenture hereto, it is provided that such series shall not have the benefit of any such Event of Default, when any of the following occurs: (i) the Company defaults in the payment of interest on any Security of that series when it becomes due and payable and such default continues for a period of 30 days;
27 20 (ii) the Company defaults in the payment of the principal of any Security of that series when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (iii) the Company fails to comply with any of its other agreements or covenants in, or provisions of, the securities of that series or this indenture and the Default continues for the period and after the notice specified below; (iv) the Company 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 (v) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company in an involuntary case or proceeding, (B) appoints a Custodian for the Company or for all or substantially all of the Company's property, or (C) orders the liquidation of the Company; and in case of (v) the order or decree remains unstayed and in effect for 60 days. The term "Bankruptcy Law" means Title 11 of the U.S. Code or any similar Federal or state law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. A Default under clause (iii) of this Section 6.01 is not an Event of Default with respect to a particular series of securities until the trustee notifies the Company in writing, or the Holders of at least 25% in principal amount of the outstanding securities of that series notify the Company and the trustee, in writing, of the Default, and the Company does not cure the Default within 30 days after receipt of the notice. The notice 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 (other than an Event of Default specified in clause (iv) or (v) of Section 6.01) occurs and is continuing, the trustee or the Holders of at least 25% of the principal amount of the outstanding securities of that series, by written notice to the Company may declare due and payable 100% of the principal amount (or, in the case of Original Issue Discount securities, such lesser amount as may be provided for in such securities) of the securities of that series plus any accrued interest to the date of payment. Upon a declaration of acceleration, such principal (or such lesser amount) and accrued interest to the date of payment shall be due and payable. If an Event of Default specified in clause (iv) or (v) of Section 6.01 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.
28 21 The Holders of a majority of the outstanding principal amount of the securities of that Series by written notice to the trustee may rescind 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 of that series 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 occurs and is continuing with respect to any series of securities, the trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or interest on the securities of that series or to enforce the performance of any provision of the securities of that series or this indenture. 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, the Holders of at least a majority in principal amount of the outstanding securities of any series by notice to the trustee may waive an existing Default or Event of Default and its consequences with respect to that series, except a Default in the nonpayment of the principal of or interest on any Security of that series (provided, however, that the Holders of a majority in principal amount of the then outstanding securities of any series 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 cured and ceases. SECTION 6.05. Control by Majority. The Holders of at least a majority in principal amount of the outstanding securities of any series 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 conflicts with law or this indenture, that the trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the trustee in personal liability. The trustee may take any other action which it deems proper which is not inconsistent with any such direction. SECTION 6.06. Limitation on Suits. A Holder of securities of any series may not pursue a remedy with respect to this indenture or the securities of that series unless: (i) the Holder gives to the trustee written notice of a continuing Event of Default with respect to such series; (ii) the Holders of at least 25% in principal amount of the outstanding securities of that series 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
29 22 amount of the outstanding securities of that series 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. SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(i) or (ii) occurs and is continuing with respect to securities of any series, the trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal (or such portion of the principal as may be specified as due upon acceleration at that time in the terms of that series of securities) and accrued interest, if any, remaining unpaid on the outstanding securities of that series, 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 7.07. 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), 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 7.07. Nothing herein contained shall be deemed to authorize the trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the 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 money 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 7.07, including payment of all compensation, expense and liabilities
30 23 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 of any particular series of securities for amounts due and unpaid on the securities of such series for principal and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the securities of such series for principal and interest, respectively; and FOURTH: to the Company or any other obligors on the securities of that series, as their interests may appear, or 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. 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 or a suit by Holders of more than 10% in principal amount of the outstanding securities of that series. ARTICLE VII TRUSTEE SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the trustee shall exercise such of the rights and powers vested in it by this indenture, and 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. However, in the case of any such certificates
31 24 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. (c) The trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own wilful 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. (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. SECTION 7.02. Rights of Trustee. Subject to TIA Section 315(a) through (d): (a) The trustee may 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 which 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
32 25 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. 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 an Affiliate of the Company with the same rights it would have if it were not trustee. Any Agent may do the same with like rights. However, the trustee is subject to Sections 7.10 and 7.11. SECTION 7.04. Trustee's Disclaimer. The trustee makes no representation as to the validity or adequacy of this indenture or the securities, it shall not be accountable for the Company's use of the proceeds from the securities and it shall not be responsible for any statement in the securities other than its certificate of authentication. SECTION 7.05. Notice of Defaults. If a Default or Event of Default with respect to the securities of any series occurs and is continuing, and if it is 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 7.06. 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 TIA Section 3.13 at the times and in the manner provided by the TIA, which shall initially 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 of any series are listed on any stock exchange. SECTION 7.07. 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 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.
33 26 Except as set forth in the next paragraph, the Company shall indemnify and hold harmless the trustee against any and all loss and liability 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 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 negligence, wilful misconduct or bad faith. To secure the Company's payment obligations in this Section 7.07, 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. Such obligations shall survive the satisfaction and discharge of the indenture. When the trustee incurs expenses or renders services after an Event of Default specified in clause (iv) or (v) of Section 6.01 occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. SECTION 7.08. Replacement of Trustee. A resignation or removal of the trustee and appointment of a successor trustee shall become effective only upon the successor trustee's acceptance of appointment as provided in this Section 7.08. The trustee may resign and be discharged from the trust hereby created with respect to one or more or all series of securities by so notifying the Company in writing. The Holders of a majority in principal amount of the then outstanding securities of any series may remove the trustee with respect to that series by so notifying the trustee and the Company in writing. The Company may remove the trustee with respect to one or more or all series of securities if: (i) the trustee fails to comply with Section 7.10 or TIA Section 310; (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 (iv) the trustee becomes incapable of acting. If, as to any series of securities, 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 that series of 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 of that series may appoint a successor trustee to replace the successor trustee appointed by the Company. Any Holder of securities of that series 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.
34 27 A successor trustee as to any series of securities 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 7.07. Notwithstanding replacement of the trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee with respect to expenses, losses and liabilities incurred by it prior to such replacement. In case of the appointment hereunder of a successor trustee with respect to the securities of one or more (but not all) series, the Company, the retiring trustee and each successor trustee with respect to the securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring trustee with respect to the securities of that or those series to which the appointment of such successor trustee relates, (2) shall contain such provisions as shall be necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring trustee with respect to the securities of that or those series as to which the retiring trustee is not retiring shall continue to be vested in the retiring trustee, and (3) shall add to or change any of the provisions of this indenture as shall be necessary or desirable to provide for or facilitate the administration of the trusts hereunder by more than one trustee; provided, however, that nothing herein or in such supplemental indenture shall constitute such trustees to be co-trustees of the same trust and that each such trustee shall be trustee of a trust hereunder separate and apart from any trust hereunder administered by any other such trustee. Upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring trustee shall become effective to the extent provided therein and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring trustee with respect to the securities of that or those series to which the appointment of such successor trustee relates. SECTION 7.09. Successor Trustee by Merger, Etc. Subject to Section 7.10, 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 as to that series of securities. SECTION 7.10. Eligibility; Disqualification. Each series of securities shall always have a trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The trustee as to any series of securities shall always have a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition. The trustee is subject to TIA Section 310(b).
35 28 SECTION 7.11. Preferential Collection of Claims Against the Company. The trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. 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 (a) either (i) all securities theretofore authenticated and delivered (other than securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the trustee for cancellation; or (ii) all such securities not theretofore delivered to the trustee for cancellation (1) have become due and payable, or (2) will become due and payable at their stated maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in the name, and at the expense, of the Company, or (4) are deemed paid and discharged pursuant to Section 8.03, as applicable; and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such securities not theretofore delivered to the trustee for cancellation, for principal and interest to the date of such deposit (in the case of securities which have become due and payable on or prior to the date of such deposit) or to the stated maturity or redemption date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
36 29 (c) 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 have been complied with. Notwithstanding the satisfaction and discharge of this indenture, the obligations of the Company to the trustee under Section 7.07, and, if money shall have been deposited with the trustee pursuant to clause (a) of this Section or if money or obligations shall have been deposited with or received by the trustee pursuant to Section 8.03, the obligations of the trustee under Section 8.02 and Section 8.05 shall survive. SECTION 8.02. Application of Trust Funds; Indemnification. (a) Subject to the provisions of Section 8.05, all money deposited with the trustee pursuant to Section 8.01, all money and U.S. Government Obligations deposited with the trustee pursuant to Section 8.03 or 8.04 and all money received by the trustee in respect of U.S. Government Obligations deposited with the trustee pursuant to Section 8.03 or 8.04, 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 (including the Company acting as its own 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 or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.03 and 8.04. (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 8.03 or 8.04 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 8.03 or 8.04 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 of Securities of any Series. Unless this Section 8.03 is otherwise specified to be inapplicable to securities of any series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding securities of any such series 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 outstanding securities of such series, 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:
37 30 (i) the rights of Holders of securities of such series to receive, from the trust funds described in subparagraph (d) hereof, (x) payment of the principal of an each installment of principal of or interest on the outstanding securities of such series on the stated maturity of such principal of or interest and (y) the benefit of any mandatory sinking fund payments applicable to the securities of such series on the day on which such payments are due and payable in accordance with the terms of this indenture and the securities of such series; (ii) the Company's obligations with respect to such securities of such series under Sections 2.03, 2.06 and 2.07; and (iii) the rights, powers, trust and immunities of the trustee hereunder and the duties of the trustee under Section 8.02 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 benefit of the Holders of such 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 and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if any, on all the securities of such series on the dates such installments of interest or principal are due; (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 the securities of such series shall have occurred 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(iv) or (v) 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 (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) 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 the securities of such series 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
38 31 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 the securities of such series 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 have been complied with. SECTION 8.04. Covenant Defeasance. Unless this Section 8.04 is otherwise inapplicable to securities of any series, 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, 4.04, 4.05, 4.07 and 4.08 and 5.01 as well as any additional covenants contained in a supplemental indenture hereto for a particular series of securities or a Board Resolution or an Officers' Certificate delivered pursuant to Section 2.01 (and the failure to comply with any such provisions shall not constitute a Default or Event of Default under Section 6.01) and the occurrence of any event described in clause (e) of Section 6.01 shall not constitute a Default or Event of Default hereunder, with respect to the securities of such series, provided that the following conditions shall have been satisfied: (a) With reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.03) with the trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such 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 certified public accountants expressed in a written certification thereof delivered to the trustee, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the securities of such series on the dates such installments of interest or principal are due; (b) Such deposit will not result in a breach or violation of, or constitute a default under, this indenture;
39 32 (c) No Default or Event of Default with respect to the securities of such series shall have occurred 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(iv) or (v) 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 Opinion of Counsel confirming that Holders of the securities of such series 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; (e) 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 the securities of such series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and (f) 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 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. The Company and the trustee may amend this indenture or the securities without the consent of any Holder: (i) to cure any ambiguity, defect or inconsistency or make any change required to qualify the indenture under the TIA, provided that such change does not adversely affect the rights hereunder of any Holder in any material respect; (ii) to comply with Section 5.01; (iii) to provide for uncertificated securities in addition to certificated securities; (iv) to make any change that does not adversely affect in any material respect the rights hereunder of any Holder; (v) to add to, change or eliminate any of the provisions of this indenture in respect of one or more series of securities, provided, however, that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such security with respect to such provision or (B) shall become effective only when there is no outstanding Security of any series created prior to the execution of such
40 33 supplemental indenture and entitled to the benefit of such provisions; or (vi) to establish additional series of securities as permitted by Section 2.01. SECTION 9.02. With Consent of Holders. The Company and the trustee as to any series of securities may amend this indenture or the securities of that series or waive compliance in any particular instance with any provision of this indenture or the securities of that series, in each case with the written consent of the Holders of at least a majority in principal amount of the then outstanding securities of that series. Without the consent of each Holder affected, an amendment or waiver under this Section may not: (i) reduce the principal amount of securities, whose Holders must consent to an amendment or waiver; (ii) reduce the rate of or change the time for payment of interest on any Security; (iii) change the date on which any Security may be subject to redemption or repurchase, or reduce the redemption or repurchase price therefor; (iv) make any Security payable in currency other than that stated in the Security; (v) make any change in Section 6.04, 6.07 or this sentence; or (vi) modify or make any change in Article X which adversely affects the rights of any Holder; It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. An amendment or waiver under this Section which waives, changes or eliminates any covenant or other provision of this indenture which has expressly been included solely for the benefit of one or more particular series of securities, or which modifies the rights of the Holders of securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this indenture of the Holders of securities of any other series. The Company will mail supplemental indentures to Holders upon request. 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 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 or waiver becomes effective, a consent to it by a Holder of a Security 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 2.14, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a
41 34 Security if the trustee receives written notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective on receipt by the trustee of consents from the Holders of the requisite percentage principal amount of the outstanding securities of any series, and thereafter shall bind every Holder of securities of that series. SECTION 9.05. Notation on or Exchange of Securities. If an amendment or waiver changes the terms of a Security: (a) the trustee may require the Holder of the 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 (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. 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 entitled to receive 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
42 35 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. (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 $40 million or the maturity of such Senior Indebtedness with a lending commitment or an aggregate principal amount outstanding in excess of $40 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 $40 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 $40 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.
43 36 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 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
44 37 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 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
45 38 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 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(ii) 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, this trustee under or pursuant to Section 7.07.
46 39 ARTICLE XI MISCELLANEOUS SECTION 11.01. 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 11.02. Notices. Any notice or communication to the Company 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: Lear Corporation 21557 Telegraph Road Southfield, Michigan 48086-5008 Attention of Chief Financial Officer with a copy to: Winston & Strawn 35 West Wacker Drive Chicago, Illinois 60601 Attention of John L. MacCarthy Daniel A. Ninivaggi If to the trustee: Attention: The Company 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.
47 40 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 mails a notice or communication to Holders, it shall mail a copy to the trustee and each Agent at the same time. SECTION 11.03. Communication by Holders with Other Holders. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this indenture or the securities. The Company, the trustee, the registrar and anyone else shall have the protection of TIA Section 312(c). SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the trustee to take any action under this indenture, the Company shall furnish to the trustee: (i) an Officers' Certificate (which shall include the statements set forth in Section 11.05) 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 11.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with. SECTION 11.05. Statements Required in Certificate or Opinion. Each certificate (other than certificates provided pursuant to Section 4.04) or opinion with respect to compliance with a condition or covenant provided for in this indenture shall include: (i) a statement that the person making such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such 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 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 11.06. 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 11.07. 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.
48 41 SECTION 11.08. Duplicate Originals. The parties may sign any number of copies of this indenture. One signed copy is enough to prove this indenture. SECTION 11.09. Governing Law. The internal laws of the State of New York shall govern this indenture and the securities, without regard to the conflicts of law rules thereof. SECTION 11.10. 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 subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this indenture. SECTION 11.11. Successors. All agreements of the Company in this indenture and the securities shall bind their respective successors. All agreements of the trustee in this indenture shall bind its successor. SECTION 11.12. Severability. In case any provision in this indenture or in the securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
49 42 SECTION 11.13. 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. LEAR CORPORATION, by______________________________ Dated: ________________________________ , as trustee, by______________________________ Authorized Signatory Dated:
1 EXHIBIT 5.1 June 5, 2000 Lear Corporation 21557 Telegraph Road Southfield, MI 48086-5008 Ladies and Gentlemen: We have acted as special counsel to Lear Corporation, a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-3 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") relating to the issuance and sale from time to time, pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Act"), of one or more series of debt securities (the "Debt Securities") and/or common stock, preferred stock, depository shares, common stock purchase warrants, preferred stock purchase warrants or debt securities purchase warrants of the Company in an aggregate principal amount (excluding the amount of any original issue discount with respect to the Debt Securities) of up to $1,000,000,000 (or the equivalent thereof, based on the applicable exchange rate at the time of sale, in one or more foreign currencies, currency units or composite currencies as shall be designated by the Company) (the "Securities"). The Debt Securities may be issued pursuant to one or more indentures and one or more supplements thereto (collectively, the "Indentures"), in each case between the Company and a trustee (each, a "Trustee"). This opinion is furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement filed with the Commission on June 5, 2000 under the Act; (ii) the form of the indentures proposed to be entered into by the Company; (iii) the Restated Certificate of Incorporation of the Company as in effect on the date hereof; (iv) the By-laws of the Company as in effect on the date hereof; and (v) resolutions adopted by the Board of Directors of the Company authorizing, among other things, the filing of the Registration Statement (the "Board Resolutions"). We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
2 Lear Corporation June 5, 2000 Page 2 In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. In making our examination of documents executed or to be executed by parties other than the Company, we have assumed that such parties have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others. Members of our firm are admitted to the bar in the State of New York, and we do not express any opinion as to the laws of any other jurisdiction other than the General Corporation Law of the State of Delaware. The Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof. Based upon and subject to the foregoing, we are of the opinion that: When (i) the Registration Statement shall have become effective under the Act, (ii) the Blue Sky or securities laws of certain states shall have been complied with, (iii) if the Securities are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Securities has been duly executed and delivered by the Company and the other parties thereto, (iv) the applicable indenture relating to the Debt Securities shall have been executed and delivered by the Company and the Trustee and duly qualified under the Trust Indenture Act of 1939, as amended, (v) the terms of the Debt Securities and of their issuance shall have been duly established in conformity with the applicable indenture relating to the Debt Securities so as not to violate any applicable law or the Restated Certificate of Incorporation or By-laws of the Company or result in default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company and (vi) the Securities shall have been duly executed, authenticated (if applicable), countersigned (if applicable) and delivered against payment therefor in accordance with the applicable indenture and underwriting agreement, if any, or any other applicable duly executed and delivered agreement, the Securities shall constitute binding obligations of the Company enforceable in accordance with their terms, except as enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (b) general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity), and except that enforcement thereof may also be limited by (x) requirements that a claim with respect to any Securities denominated other than in United States dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined
3 Lear Corporation June 5, 2000 Page 3 pursuant to applicable law or (y) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payment outside of the United States. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption "Legal Matters" in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. Very truly yours, /s/ Winston & Strawn
1 EXHIBIT 12.1 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (DOLLARS IN MILLIONS, EXCEPT RATIO OF EARNINGS TO FIXED CHARGES) Quarter Ended Year Ended December 31, ------------------ ------------------------------------------------ April 1, April 3, 2000 1999 1999 1998 1997 1996 1995 ------- -------- ------ ------ -------- -------- ------ Income before provision for national income taxes, minority interests in net income (loss) of subsidiaries, equity (income) loss of affiliates, and extraordinary items 106.4 83.7 443.0 $ 214.8 $ 345.8 $ 253.4 $ 152.9 Fixed charges 87.0 35.0 262.6 130.7 113.6 112.7 82.6 Distributed income of affiliates - - - 2.3 3.9 3.0 1.3 ------ ------ ------ -------- -------- -------- -------- Earnings 193.4 118.7 705.6 $ 347.8 $ 463.3 $ 369.1 $ 236.8 ====== ====== ====== ======== ======== ======== ======== Interest expense 78.8 30.1 235.1 $ 110.5 $ 101.0 $ 102.8 $ 75.5 Portion of lease expense representative of interest 8.2 4.9 27.5 20.2 12.6 9.9 7.1 ------ ------ ------ -------- -------- -------- -------- Fixed Charges 87.0 35.0 262.6 $ 130.7 $ 113.6 $ 112.7 $ 82.6 ====== ====== ====== ======== ======== ======== ======== Ratio of Earnings to Fixed Charges 2.2 3.4 2.7 2.7 4.1 3.3 2.9 Fixed Charges in Excess of Earnings - - - - - - -
1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated January 28, 2000 included in Lear Corporation's Form 10-K for the year ended December 31, 1999 and to all references to our firm included in this registration statement. /s/ Arthur Andersen LLP Detroit, Michigan, May 26, 2000.
1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-3 (No. 333-43085) of Lear Corporation of our report dated March 31, 1999 relating to the financial statements of UT Automotive, Inc. (formerly a wholly-owned operating segment of United Technologies Corporation), which appears in the Current Report on Form 8-K of Lear Corporation dated May 4, 1999. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP Detroit, Michigan May 26, 2000
1 EXHIBIT 23.3 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Registration Statement No. 333-43085 of Lear Corporation on Form S-3 of our report dated August 21, 1998 on financial statements of the Seating Business, formerly of the Delphi Interior Systems Division of Delphi Automotive Systems Corporation, appearing in the Current Report of Lear Corporation on Form 8-K/A dated September 1, 1998, and filed with the Securities and Exchange Commission on November 17, 1998 and to the reference to us under the heading "Experts" in the Prospectus. /s/ Deloitte & Touche LLP Detroit, Michigan May 26, 2000
1 EXHIBIT 25.1 ================================================================================ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) | | -- -------------------- THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code) -------------------- LEAR CORPORATION (Exact name of obligor as specified in its charter) Delaware 13-3386776 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 21557 Telegraph Road Southfield, Michigan 48086-5008 (Address of principal executive offices) (Zip code) -------------------- Debt Securities (Title of the indenture securities) ================================================================================
2 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT. - -------------------------------------------------------------------------------- Name Address - -------------------------------------------------------------------------------- Superintendent of Banks of the State of 2 Rector Street, New York, New York N.Y. 10006, and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005 (B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. Yes. 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. None. 16. LIST OF EXHIBITS. EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. -2-
3 SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 19th day of May, 2000. THE BANK OF NEW YORK By: /s/ MICHAEL CULHANE --------------------------- Name: MICHAEL CULHANE Title: VICE PRESIDENT
4 EXHIBIT 7 - -------------------------------------------------------------------------------- Consolidated Report of Condition of THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1999, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act. Dollar Amounts ASSETS In Thousands Cash and balances due from depository institutions: Non interest-bearing balances and currency and coin................ $ 3,247,576 Interest-bearing balances.......................................... 6,207,543 Securities: Held-to-maturity securities........................................ 827,248 Available-for-sale securities...................................... 5,092,464 Federal funds sold and Securities purchased under agreements to resell............................................... 5,306,926 Loans and lease financing receivables: Loans and leases, net of unearned income........................................................... 37,734,000 LESS: Allowance for loan and lease losses..................................................... 575,224 LESS: Allocated transfer risk reserve.......................................................... 13,278 Loans and leases, net of unearned income, allowance, and reserve........................................... 37,145,498 Trading Assets........................................................ 8,573,870 Premises and fixed assets (including capitalized leases)............................................................ 723,214 Other real estate owned............................................... 10,962 Investments in unconsolidated subsidiaries and associated companies............................................... 215,006 Customers' liability to this bank on acceptances outstanding........................................................ 682,590 Intangible assets..................................................... 1,219,736 Other assets.......................................................... 2,542,157 ----------- Total assets.......................................................... $71,794,790 =========== LIABILITIES Deposits: In domestic offices................................................ $27,551,017 Noninterest-bearing................................................ 11,354,172 Interest-bearing................................................... 16,196,845 In foreign offices, Edge and Agreement subsidiaries, and IBFs........................................... 27,950,004 Noninterest-bearing................................................ 639,410 Interest-bearing................................................... 27,310,594 Federal funds purchased and Securities sold under agreements to repurchase........................................... 1,349,708 Demand notes issued to the U.S.Treasury............................... 300,000 Trading liabilities................................................... 2,339,554 Other borrowed money: With remaining maturity of one year or less........................ 638,106 With remaining maturity of more than one year through three years.............................................. 449 With remaining maturity of more than three years................... 31,080 Bank's liability on acceptances executed and outstanding........................................................ 684,185 Subordinated notes and debentures..................................... 1,552,000 Other liabilities..................................................... 3,704,252 ----------- Total liabilities..................................................... 66,100,355 =========== EQUITY CAPITAL Common stock.......................................................... 1,135,284 Surplus............................................................... 866,947 Undivided profits and capital reserves................................ 3,765,900 Net unrealized holding gains (losses) on available-for-sale securities...................................... (44,599) Cumulative foreign currency translation adjustments................... (29,097) ----------- Total equity capital.................................................. 5,694,435 ----------- Total liabilities and equity capital.................................. $71,794,790 =========== I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Thomas J. Mastro We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. Thomas A. Renyi } Alan R. Griffith } Directors Gerald L. Hassell }