UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 23, 2010
LEAR CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation) |
1-11311 (Commission File Number) |
13-3386776 (IRS Employer Identification Number) |
| 21557 Telegraph Road, Southfield, MI (Address of principal executive offices) |
48033 (Zip Code) |
(248) 447-1500
(Registrant’s telephone number, including area code)
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1
— Registrant’s Business and Operations
| Item 1.01. | Entry into a Material Definitive Agreement |
Underwriting Agreement
On March 23, 2010, Lear Corporation (the “Company”) and certain of its wholly-owned subsidiaries
(the “Subsidiary Guarantors”) entered into an underwriting agreement (the “Underwriting Agreement”)
with Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Barclays Capital Inc.
and UBS Securities LLC, as representatives of the several underwriters (the
“Underwriters”), relating to the issuance and sale by the Company of $350 million in aggregate
principal amount of 7.875% senior notes due 2018 (the “2018 Notes”) and $350 million in aggregate
principal amount of 8.125% senior notes due 2020 (the “2020 Notes” and together with the 2018
Notes, the “Notes”). The 2018 Notes were priced at 99.276%
of par, resulting in a yield to
maturity of 8.00%, and the 2020 Notes were priced at 99.164% of par, resulting in a yield to
maturity of 8.25%. The Notes were offered and sold pursuant to the Company’s automatic shelf
registration statement on Form S-3 filed with the Securities and
Exchange Commission on March 22, 2010 (Registration No. 333-165593).
The
Company used the net proceeds from the offering, together with current cash and cash
equivalents, to repay in full all amounts outstanding under the term loans provided under the
Company’s first lien credit facility and second lien credit facility.
The Underwriting Agreement includes customary representations, warranties and covenants by the
Company and the Subsidiary Guarantors. It also provides for customary indemnification by each of
the Company, the Subsidiary Guarantors and the Underwriters against certain liabilities and
customary contribution provisions in respect of those liabilities.
Certain of the Underwriters and their affiliates have engaged in, and may in the future engage in,
commercial banking, investment banking and advisory services for the
Company from time to time.
The Underwriting Agreement is filed as Exhibit 1.1 hereto and incorporated herein by reference.
The above description of the material terms of the Underwriting Agreement is not complete and is
qualified in its entirety by reference to Exhibit 1.1.
Indenture
On March 26, 2010, the Company completed its offering of the Notes. The Company issued the Notes
pursuant to an Indenture, dated March 26, 2010 (the “Base
Indenture”), among the Company, the
Subsidiary Guarantors and The Bank of New York Mellon Trust Company,
N.A., as trustee (the “Trustee”), as
supplemented by a First Supplemental Indenture, dated March 26, 2010 (the “First Supplemental
Indenture,” and together with the Base Indenture, the “Indenture”), among the Company,
the Subsidiary Guarantors and the Trustee.
The Indenture provides, among other things, that the Notes will be senior unsecured obligations of
the Company. Interest is payable on the Notes on March 15 and September 15 of each year, beginning
September 15, 2010. The 2018 Notes will mature on March 15, 2018 and the 2020 Notes will mature on
March 15, 2020.
The Company may redeem the 2018 Notes in whole or in part on or after March 15, 2014 at redemption
prices of 103.938% or 101.969% of the principal amount thereof if the redemption occurs during the
12-month period beginning on March 15, 2014 or 2015, respectively, and a redemption
price of 100.000% of the principal amount thereof on or after March 15, 2016, in each case plus
accrued and unpaid interest to the redemption date. Prior to March 15, 2013, the Company may
redeem up to 35% of the aggregate principal amount of the 2018 Notes
with the net cash proceeds of one or more equity offerings, at a price equal to 107.875% of the principal
amount thereof, plus accrued and unpaid interest to the redemption date, provided that at least 65%
of the original aggregate principal amount of the 2018 Notes remains outstanding after the
redemption. Prior to March 15, 2014, the Company also may redeem the
2018 Notes in whole or in part at a redemption price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest to the redemption date plus a “make-whole”
premium. In addition, prior to March 15, 2014, during any 12-month period, the Company may redeem
up to 10% of the aggregate principal amount of the 2018 Notes at a
redemption price equal to 103.000%
of the principal amount thereof, plus accrued and unpaid interest to the redemption date.
The Company may redeem the 2020 Notes in whole or in part on or after March 15, 2015 at redemption
prices of 104.063%, 102.708% or 101.354% of the principal amount thereof if the redemption occurs
during the 12-month period beginning on March 15, 2015, 2016 or 2017,
respectively, and a redemption price of 100.000% of the principal amount thereof on or after March 15,
2018, in each case plus accrued and unpaid interest to the redemption date. Prior to March 15,
2013, the Company may redeem up to 35% of the aggregate principal
amount of the 2020 Notes with the net cash proceeds of one or more equity offerings, at a price equal to
108.125% of the principal amount thereof, plus accrued and unpaid interest to the redemption date,
provided that at least 65% of the original aggregate principal amount of the 2020 Notes remains
outstanding after the redemption. Prior to March 15, 2015, the Company may redeem the 2020 Notes
in whole or in part at a redemption price equal to 100% of the aggregate principal amount thereof,
plus accrued and unpaid interest to the redemption date plus a “make-whole” premium. In addition,
prior to March 15, 2015, during any 12-month period, the Company may redeem up to 10% of the
aggregate principal amount of the 2020 Notes at a redemption price
equal to 103.000% of the principal
amount thereof, plus accrued and unpaid interest to the redemption date.
Subject to certain limitations, in the event of a change of control of the Company, the Company
will be required to make an offer to purchase the Notes at a purchase price equal to 101% of the
principal amount of the Notes, plus accrued and unpaid interest to the date of purchase.
The Company’s payment obligations under the Notes are fully and unconditionally guaranteed, jointly
and severally, on a senior unsecured basis by the Subsidiary Guarantors.
The Indenture contains restrictive covenants that, among other things, limit the ability of the
Company and the Subsidiary Guarantors to: (i) incur additional debt, (ii) pay dividends and make
other restricted payments, (iii) create or permit certain liens, (iv) issue or sell capital stock
of the Company’s restricted subsidiaries, (v) use the proceeds from sales of assets and subsidiary
stock, (vi) create or permit restrictions on the ability of the Company’s restricted subsidiaries
to pay dividends or make other distributions to the Company, (vii) enter into transactions with
affiliates, (viii) enter into sale and leaseback transactions, and (ix) consolidate or merge or
sell all or substantially all of the Company’s assets. The foregoing limitations are subject to
exceptions as set forth in the First Supplemental Indenture. In addition, if in the future the
Notes have an investment grade credit rating from both Moody’s Investors Service, Inc. and Standard &
Poor’s and no
default has occurred and is continuing, certain of these covenants will, thereafter,
no longer apply to the Notes for so long as the Notes are rated investment grade by both rating
agencies.
The Indenture provides for customary events of default that include, among other things (subject in
certain cases to customary grace and cure periods): (i) non-payment of principal or interest; (ii)
breach of certain covenants contained in the First Supplemental Indenture or the Notes, (iii)
failure to pay certain other indebtedness or the acceleration of certain other
indebtedness prior to maturity if the total amount of such indebtedness unpaid or accelerated
exceeds $100 million or its foreign currency equivalent,
(iv) the rendering of a final and nonappealable judgment for
the payment of money in excess of $100 million or its foreign currency equivalent, (v) the failure
of the guarantees by the Subsidiary Guarantors to be in full force
and effect in all material respects and (vi) certain events of bankruptcy or insolvency.
Generally, if an event of default occurs (subject to certain exceptions), the Trustee or the
holders of at least 25% in aggregate principal amount of the then
outstanding Notes of any series may declare all of
the Notes of such series to be due and payable immediately.
The Base Indenture and the First Supplemental Indenture are filed as Exhibits 4.1 and 4.2,
respectively, to this Current Report on Form 8-K and are incorporated by reference herein. The
above description of the material terms of the Indenture does not purport to be complete and is
qualified in its entirety by reference to Exhibits 4.1 and 4.2.
Section 7 — Regulation FD
Section 7.01. Regulation FD Disclosure
On March 23, 2010, the Company announced the pricing of the offering of the
Notes. The Company’s press release announcing the pricing of the offering is attached as Exhibit
99.1 hereto and incorporated herein by reference.
On March 26, 2010, the Company announced the completion of the offering of the
Notes. The Company’s press release announcing the completion of the offering is attached as
Exhibit 99.2 hereto and incorporated herein by reference.
The information contained in this Item 7.01 and Exhibits 99.1 and 99.2 hereto shall not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or incorporated by reference in any filing under the Securities Act of 1933, as
amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such
a filing.
Section 9 — Financial Statements and Exhibits
| Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits:
| Exhibit | ||
| Number | Exhibit Description | |
1.1
|
Underwriting Agreement, dated March 23, 2010, among the Company, the Subsidiary Guarantors and Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Barclays Capital Inc. and UBS Securities LLC, as representatives of the several underwriters named therein. | |
4.1
|
Indenture, dated March 26, 2010, among the Company, the Subsidiary Guarantors and the Trustee. | |
4.2
|
First Supplemental Indenture, dated March 26, 2010, among the Company, the Subsidiary Guarantors and the Trustee. | |
99.1
|
Press Release, dated March 24, 2010, announcing the pricing of the Notes. | |
99.2
|
Press Release, dated March 26, 2010, announcing the completion of the offering of the Notes. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Lear Corporation |
||||
| Date: March 29, 2010 | By: | /s/ Matthew J. Simoncini | ||
| Name: | Matthew J. Simoncini | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
EXHIBIT INDEX
| Exhibit | ||
| Number | Exhibit Description | |
1.1
|
Underwriting Agreement, dated March 23, 2010, among the Company, the Subsidiary Guarantors and Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Barclays Capital Inc. and UBS Securities LLC, as representatives of the several underwriters named therein. | |
4.1
|
Indenture, dated March 26, 2010, among the Company, the Subsidiary Guarantors and the Trustee. | |
4.2
|
First Supplemental Indenture, dated March 26, 2010, among the Company, the Subsidiary Guarantors and the Trustee. | |
99.1
|
Press Release, dated March 24, 2010, announcing pricing of the Notes. | |
99.2
|
Press Release, dated March 26, 2010, announcing completion of the offering of the Notes. |
Exhibit 1.1
EXECUTION COPY
Lear Corporation
7.875% Senior Notes Due 2018
8.125% Senior Notes Due 2020
Underwriting Agreement
New York, New York
March 23, 2010
March 23, 2010
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Lear Corporation, a corporation organized under the laws of Delaware (the “Company”), proposes
to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you
(the “Representatives”) are acting as representatives, the principal amount of its securities
identified in Schedule I hereto (the “Notes”), to be issued under an indenture (the “Indenture”)
dated as of March 26, 2010, among the Company, the subsidiary guarantors party thereto (the
“Subsidiary Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the
“Trustee”). To the extent there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 20 hereof.
The Subsidiary Guarantors shall provide a guarantee (the “Guarantee”) of the obligations under
the Notes (the “Subsidiary Guarantees,” and together with the Notes, the “Securities”). For
purposes of this Agreement, all references to Subsidiary Guarantors shall mean those entities set
forth on Schedule V hereto.
1. Representations and Warranties. The Company and each of the Subsidiary Guarantors
represent and warrant to, and agree with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as defined
in Rule 405 (the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related Base Prospectus, for registration under the Act of the offering and sale
of the Securities. Such Registration Statement, including any amendments thereto filed prior
to the Execution Time, became effective upon filing. The Company may have filed with the
Commission, as part of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more Preliminary Prospectuses relating to the Securities, each of which has
previously been furnished to you. The Company will file with the Commission a Final
Prospectus relating to the Securities in accordance with Rule 424(b). As filed, such Final
Prospectus shall contain all information required by the Act and the rules thereunder, and,
except to the extent the Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration
Statement was not earlier than the date three years before the Execution Time. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission
and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company
or related to this offering has been initiated or, to the knowledge of the Company,
threatened by the Commission.
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder; and as of its
date and on the Closing Date, the Final Prospectus (together with any supplement thereto)
will not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
and the Subsidiary Guarantors make no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the
2
only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(c) The Disclosure Package and each electronic road show, when taken together as a
whole with the Disclosure Package, does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof. The documents incorporated by reference
in the Disclosure Package, the Registration Statement and the Final Prospectus, when they
became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act and the Exchange Act and none of such
documents contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Disclosure Package, the Registration Statement
or the Final Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, and (iv) at the Execution Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the
Commission relating to the Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
3
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, the Disclosure Package or the Final
Prospectus, including any document incorporated therein by reference and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(g) Each of the Company and its significant subsidiaries (as such term is defined in
Rule 1-02 of Regulation S-X under the Act) has been duly incorporated, formed or otherwise
organized and is validly existing as a corporation, limited liability company or partnership
in good standing under the laws of the jurisdiction in which it is chartered or organized
with full corporate, limited liability company or partnership, as the case may be, power and
authority to own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Final Prospectus, and is duly
qualified to do business as a foreign corporation, limited liability company or partnership
and is in good standing under the laws of each jurisdiction which requires such
qualification, except where the failure to have such power, be so qualified, or be in good
standing would not, individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business or results of operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse Effect”).
(h) All the outstanding shares of capital stock of each subsidiary that is a
corporation have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final
Prospectus, all outstanding shares of capital stock of the subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or encumbrances (other than
liens and other encumbrances that will be permitted under the terms of the Indenture).
(i) All the outstanding limited liability company interests of each subsidiary that is
a limited liability company have been duly and validly authorized and issued in accordance
with the applicable limited liability company law, and, except as otherwise set forth in the
Disclosure Package and the Final Prospectus, all outstanding limited liability company
interests of such subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances (other than liens and other encumbrances that will
be permitted under the terms of the Indenture).
(j) All the outstanding partnership, limited partnership, or limited liability
partnership interests of each subsidiary that is a partnership, limited partnership, or
limited liability partnership, as the case may be, have been duly and validly authorized
4
and issued in accordance with the applicable partnership law, and, except as otherwise
set forth in the Disclosure Package and the Final Prospectus, all outstanding partnership,
limited partnership, or limited liability partnership interests of such subsidiaries are
owned by the Company either directly or through wholly owned subsidiaries free and clear of
any perfected security interest or any other security interests, claims, liens or
encumbrances (other than liens and other encumbrances that will be permitted under the terms
of the Indenture).
(k) This Agreement has been duly authorized, executed and delivered by the Company and
the Subsidiary Guarantors.
(l) The Company and each Subsidiary Guarantor has all requisite corporate or limited
liability company power and authority to execute, deliver and perform its obligations under
the Indenture. The Indenture has been duly and validly authorized by the Company and each
Subsidiary Guarantor and, on the Closing Date, will have been validly executed and delivered
by the Company and each Subsidiary Guarantor. When the Indenture has been executed and
delivered by the Company and each Subsidiary Guarantor (assuming the due authorization,
execution and delivery by the Trustee), the Indenture will constitute a valid and legally
binding agreement of the Company and each Subsidiary Guarantor, enforceable against them in
accordance with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors’ rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(m) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Notes. The Notes, when issued, will be in the form
contemplated by the Indenture. The Notes have been duly and validly authorized by the
Company and, when executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and when delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture, and enforceable
against the Company in accordance with their terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding therefor
may be brought.
(n) Each Subsidiary Guarantor has all requisite corporate or limited liability company
power and authority to execute, deliver and perform each of its obligations under the
Guarantees. Each Guarantee has been duly authorized by the applicable Subsidiary Guarantor
and, on the Closing Date, will have been validly executed and delivered by such Subsidiary
Guarantor. When the Guarantees have been executed in accordance with the provisions of the
Indenture, the Securities will be entitled to the benefits of the Guarantees and will be
valid and binding obligations of the Guarantors, enforceable in accordance with their terms
except that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws
5
now or hereafter in effect relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding therefor
may be brought.
(o) The Company and the Subsidiary Guarantors are not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as amended.
(p) No consent, approval, authorization, filing with or order of any court or
governmental or regulatory agency or body is required in connection with the transactions
contemplated herein, except (i) such as will be obtained or made under the Act, the Exchange
Act and the Trust Indenture Act, (ii) such as may be required under the blue sky laws of any
jurisdiction or the laws of any foreign jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated herein and in
the Disclosure Package and the Final Prospectus, (iii) such as may be required by the
Financial Industry Regulatory Authority and (iv) such as would not have a Material Adverse
Effect or a material adverse effect on the Company’s ability to consummate the transactions
contemplated herein.
(q) Neither the execution, delivery and performance by the Company and the Subsidiary
Guarantors of this Agreement, the Indenture, and the Guarantees nor the issue and sale of
the Securities nor the consummation of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or
bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its subsidiaries or any of its or their properties; except in the cases of
clauses (ii) and (iii), for such conflicts, violations, liens, charges or encumbrances that
would not, individually or in the aggregate, have a Material Adverse Effect.
(r) Except as set forth in the Disclosure Package and the Final Prospectus, no holders
of securities of the Company or the Subsidiary Guarantors have rights to the registration of
such securities under the Registration Statement.
(s) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included or incorporated by reference into the Preliminary
Prospectus, the Final Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to form with the
6
applicable accounting requirements of Regulation S-X of the Act and have been prepared
in conformity with generally accepted accounting principles in the United States applied on
a consistent basis throughout the periods involved (except as otherwise noted therein). The
summary financial data set forth under the caption “Summary Historical Financial Data” and
the selected financial data set forth under the caption “Selected Historical Financial Data”
in the Preliminary Prospectus and the Final Prospectus fairly present in all material
respects, on the basis stated in the Preliminary Prospectus and the Final Prospectus, the
information included therein.
(t) Except as set forth in the Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto), no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the knowledge of the Company or the
Subsidiary Guarantors, threatened that (i) would reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would reasonably be expected to have a Material
Adverse Effect.
(u) Except as set forth in the Disclosure Package or the Final Prospectus, each of the
Company and each of its subsidiaries owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(v) Neither the Company nor any of its subsidiaries is in violation or default of (i)
any provision of its charter or bylaws (or similar organization document), (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or such subsidiary
or any of its properties, as applicable; except in the cases of clauses (ii) and (iii), for
such violations or defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(w) Ernst & Young, LLP, who have opined to certain financial statements of the Company
and its consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedule incorporated by reference into the Disclosure
Package and the Final Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published rules and regulations
thereunder.
(x) The Company and the Subsidiary Guarantors have filed all tax returns that are
required to be filed or have requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect and except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
7
contested in good faith or as would not have a Material Adverse Effect and except as
set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto).
(y) Except as would not reasonably be expected to have a Material Adverse Effect, no
labor dispute with the employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is threatened or imminent, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(z) Except, in each case, as would not reasonably be expected to have a Material
Adverse Effect, the Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; all policies of insurance
and fidelity or surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are, to the knowledge of
the Company, in full force and effect; the Company and its subsidiaries are in compliance
with the terms of such policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a reservation of rights
clause; in the past three years, neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and, to the knowledge of the Company,
it will be able to renew its existing insurance coverage as and when such coverage expires
or to obtain comparable coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(aa) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company or any Subsidiary Guarantor any loans or
advances to such subsidiary from the Company or any Subsidiary Guarantor or from
transferring any of such subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
(bb) Except as would not reasonably be expected to have a Material Adverse Effect, the
Company and its subsidiaries possess all licenses, certificates, permits and other
authorizations issued by all applicable authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received in the past three
years any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(cc) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
8
executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its subsidiaries are not aware of any
material weakness in their internal controls over financial reporting.
(dd) The Company and its subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed
to ensure that information required to be disclosed by the Company in reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions regarding required disclosure.
The Company and its subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(ee) The Company and each Subsidiary Guarantor has not taken, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company or any Subsidiary Guarantor to facilitate the sale
or resale of the Securities.
(ff) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice of any actual or
potential liability under any environmental law, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(gg) The Company and, to the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, are in compliance in all material respects with
the provisions of Section 404 of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith currently applicable to the Company.
(hh) Neither the Company, nor to the knowledge of the Company, any of its subsidiaries,
nor any director, officer, agent, employee or affiliate of the Company or any
9
of its subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company, and to the knowledge of the Company,
its subsidiaries and its affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance therewith.
(ii) The operations of the Company and its subsidiaries are, and in the past three
years have been, conducted in compliance in all material respects with applicable financial
recordkeeping and reporting requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(jj) Neither the Company, nor to the knowledge of the Company, any of its
subsidiaries, any director, officer, agent, employee or affiliate of the Company or any of
its subsidiaries (in their capacity as such with respect to the Company or any of its
subsidiaries) is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(kk) The Company and its subsidiaries own, possess, license or have other rights to
use, on reasonable terms, all patents, patent applications, trade and service marks, trade
and service mark registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of the Company’s business as now
conducted or as proposed in the Disclosure Package and the Final Prospectus to be conducted,
except as set forth in the Disclosure Package and the Final Prospectus, or where the failure
to so own, possess, license or otherwise have the right to use would not reasonably be
expected to have a Material Adverse Effect. Except as set forth in the Disclosure Package
and the Final Prospectus, the Company has not received any notice of infringement or
conflict with asserted rights of others with respect to any intellectual property rights
that would, individually or in the aggregate, not reasonably be expected to have a Material
Adverse Effect.
10
(ll) The statistical, industry-related and market-related data included in each of the
Registration Statement, the Disclosure Package and the Final Prospectus, are based on or
derived from sources that the Company believes to be reliable and accurate
(mm) The Notes, the Guarantees and the Indenture will conform in all material respects
to the descriptions thereof in each of the Registration Statement, the Disclosure Package
and the Final Prospectus.
Any certificate signed by any officer of the Company or Subsidiary Guarantor and delivered to
the Representatives or counsel for the Underwriters on or about the Closing Date in connection with
the offering of the Securities shall be deemed a representation and warranty by the Company or
Subsidiary Guarantor, as the case may be, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such time of delivery and payment for the Securities, the “Closing
Time” and such date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Disclosure Package.
5. Agreements. The Company and each of the Subsidiary Guarantors jointly and
severally agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement without the consent of the Representatives, which consent shall not
be unreasonably withheld, unless the Company is required by law to make such filing before
consent can be given. The Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed in a form
11
approved by the Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of the offering of the Securities, subject to Section 5(b), any amendment to the
Registration Statement shall have been filed or become effective, (iii) of any request by
the Commission or its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose, (v) of the receipt by the
Company of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act
and (vi) of the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its reasonable efforts
to prevent the issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an amendment to
the Registration Statement or a new registration statement and using its reasonable efforts
to have such amendment or new registration statement declared effective as soon as
practicable.
(b) The Company will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in the form approved by you and
attached as Schedule IV hereto and file such term sheet pursuant to Rule 433(d) within the
time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request, provided, however, that before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the time that the
Registration Statement becomes effective the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed amendment or supplement for review and
will not make, prepare, use, authorize, approve, refer to or file any such proposed
amendment or supplement to which the Representatives reasonably object, except as otherwise
may be required by law.
12
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its reasonable efforts to have any amendment to the
Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply
any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives for a period of twelve months following the Execution
Time, an earnings statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer
Free Writing Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production of all documents
relating to the offering.
(g) The Company will use its reasonable efforts to arrange, if necessary, for the
qualification of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and maintain such qualifications in effect so long as required
for the distribution of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(h) The Company and each Subsidiary Guarantor agree that, unless it has or shall have
obtained the prior written consent of the Representatives, and each Underwriter, severally
and not jointly, agrees with the Company that, unless it has or shall have obtained, as the
case may be, the prior written consent of the Company, it has not made and will not make any
offer relating to the Securities that would constitute an
13
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission
or retained by the Company under Rule 433, other than a free writing prospectus containing
the information contained in the final term sheet prepared and filed pursuant to Section
5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed
to have been given in respect of the Free Writing Prospectuses included in Schedule III
hereto and any electronic road show. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(i) The Company and each Subsidiary Guarantor will not, without the prior written
consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company
(other than the Securities) or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company and each Subsidiary Guarantor will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company or Subsidiary Guarantor to facilitate the sale or
resale of the Securities.
(k) The Company and the Subsidiary Guarantors agree to pay the costs and expenses
relating to the following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, each Preliminary Prospectus,
the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or
supplements to any of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original issuance and sale of the Securities;
(iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum
and all other agreements or documents printed
14
(or reproduced) and delivered in connection with the offering of the Securities; (v)
the registration of the Securities and the Guarantees under the Exchange Act; (vi) any
registration or qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc.
(including filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses reasonably incurred
by or on behalf of Company or Subsidiary Guarantor representatives in connection with
presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the
Company’s accountants and the fees and expenses of counsel (including local and special
counsel) for the Company and the Subsidiary Guarantors; and (x) all other costs and expenses
incident to the performance by the Company and the Subsidiary Guarantors of their
obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Subsidiary Guarantors contained herein as of the
Execution Time and the Closing Date, to the accuracy of the statements of the Company and the
Subsidiary Guarantors made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Subsidiary Guarantors of their respective obligations hereunder
and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet contemplated by Section
5(b) hereto, and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused Winston & Strawn LLP, counsel for the
Company, to have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, substantially in the form attached as Annex A hereto.
(c) The Company shall have requested and caused Bodman LLP, counsel for the Company, to
have furnished to the Representatives their opinion, dated the Closing Date and addressed to
the Representatives, substantially in the form attached as Annex B hereto.
(d) The Representatives shall have received from Weil, Gotshal & Manges LLP, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Disclosure Package, the Final Prospectus
15
(together with any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the
Company and any Subsidiary Guarantors, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company and such Subsidiary
Guarantor, dated the Closing Date, to the effect that the signers of such certificate have
examined the Registration Statement, the Disclosure Package, the Final Prospectus and any
supplements or amendments thereto, as well as each electronic road show used in connection
with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(f) The Company shall have requested and caused Ernst & Young LLP to have furnished to
the Representatives, at the Execution Time and at the Closing Date, letters (which may refer
to letters previously delivered to one or more of the Representatives), dated respectively
as of the Execution Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable rules and regulations adopted by
the Commission thereunder and the Public Company Accounting Oversight Board and containing
statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus (together with any supplement thereto), provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more than three
business days prior to the Closing Date. References to the Final Prospectus in this
paragraph (f) include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in paragraph (f) of
this Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), business or results of operations of the
Company and its subsidiaries taken as a whole, whether or not
16
arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering, sale or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any amendment
thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Notes by either Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. or Moody’s Investors Services, Inc. or any of their respective
successors or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of the possible
change.
(i) Prior to the Closing Date, the Company and each Subsidiary Guarantor shall have
furnished to the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Weil, Gotshal & Manges LLP, counsel for the Underwriters, at 767 Fifth Avenue, New York, New York,
on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any refusal, inability or failure on the
part of the Company or any Subsidiary Guarantor to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriters or the occurrence of
any of the events specified in Section 10 hereof, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and each of the
Subsidiary Guarantors jointly and severally agree to indemnify and hold harmless each
Underwriter, their respective affiliates, the directors, officers, employees and agents of
each Underwriter and their respective affiliates, and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all
17
losses, claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other U.S. federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein, not
misleading, (ii) or any untrue statement or alleged untrue statement of a material fact
contained in the Base Prospectus, any Preliminary Prospectus, the Final Prospectus or any
amendment or supplement thereto, any Issuer Free Writing Prospectus or the Disclosure
Package, or caused by any omission or alleged omission to state therein a material fact
necessary in order to make statements therein, in light of the circumstances under which
they were made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company and each Subsidiary Guarantor will not
be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company and each Subsidiary Guarantor may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each Subsidiary Guarantor, each of their respective directors, each of their
respective officers, and each person who controls the Company and each Subsidiary Guarantor
within the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company and each Subsidiary Guarantor to each Underwriter, but
only with reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have. The Company
and each Subsidiary Guarantor acknowledge that the statements set forth (i) in the last
paragraph of the cover page regarding delivery of the Securities and, under the heading
“Underwriting”, (ii) the list of Underwriters and their respective participation in the sale
of the Securities, (iii) the sentences related to concessions and reallowances and (iv) the
paragraph related to stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to
18
notify the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel
(including one local counsel in each jurisdiction) of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel (including one local counsel in each jurisdiction) to
represent the indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are in conflict with those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying party shall
authorize in writing the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent (x) includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding and (y) does not include
any statement as to any admission of fault, culpability or a failure to act by or on behalf
of any indemnified person.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Subsidiary Guarantors, jointly and severally, and the Underwriters severally
and not jointly agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending the same) (collectively “Losses”) to which the Company, the Subsidiary Guarantors
and one or more of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Subsidiary Guarantors on the
one hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting
19
discount or commission applicable to the Securities purchased by such Underwriter
hereunder. Citigroup Global Markets Inc. (the “Independent Underwriter”) in its capacity as
“qualified independent underwriter” (within the meaning of NASD, Inc. Conduct Rule 2720)
shall be responsible for any amount in excess of the compensation received by the
Independent Underwriter for acting in such capacity. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, the Subsidiary
Guarantors and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
Company and the Subsidiary Guarantors on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company and the
Subsidiary Guarantors shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Company, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Benefits
received by the Independent Underwriter in its capacity as “qualified independent
underwriter” shall be deemed to be equal to the compensation received by the Independent
Underwriter for acting in such capacity. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information
provided by the Company and the Subsidiary Guarantors on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company, the
Subsidiary Guarantors and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each affiliate, director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person who controls
the Company and the Subsidiary Guarantors within the meaning of either the Act or the
Exchange Act and each officer and director of the Company or any Subsidiary Guarantor shall
have the same rights to contribution as the Company or any Subsidiary Guarantor, subject in
each case to the applicable terms and conditions of this paragraph (d)
(e) Without limitation of and in addition to its obligations under the other paragraphs
of this Section 8, the Company agrees to indemnify and hold harmless the Independent
Underwriter, its affiliates, directors, officers, employees and agents and each person who
controls Independent Underwriter within the meaning of either the Act or the against any and
all losses, claims, damages or liabilities, joint or several, to which they or any of them
may become subject, insofar as such losses, claims, damages or liabilities (or action in
respect thereof) arise out of or are based upon Independent Underwriter’s acting as a
“qualified independent underwriter” (within the meaning of NASD, Inc. Conduct Rule 2720) in
connection with the offering contemplated by this Agreement, and agrees
20
to reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage or liability
results from the gross negligence or willful misconduct of the Independent Underwriter.
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s
Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have
been declared either by U.S. federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with
the offering, sale or delivery of the Securities as contemplated by any Preliminary Prospectus or
the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company, the Subsidiary
Guarantors or their respective officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any Subsidiary Guarantor or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8 hereof, and will
21
survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York, 10013,
Attention: General Counsel; or, if sent to the Company or any Subsidiary Guarantor, will be
mailed, delivered or telefaxed to (248) 447-5126 and confirmed to it at Lear Corporation, 21557
Telegraph Road, Southfield, Michigan 48035, Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the affiliates, officers, directors, employees,
agents and controlling persons referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
14. No Fiduciary Duty. The Company and each Subsidiary Guarantor hereby acknowledge
that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company and the Subsidiary Guarantors, on the one hand, and the
Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters
are acting as principal and not as an agent or fiduciary of the Company and the Subsidiary
Guarantors and (c) the Company’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company and the Subsidiary Guarantors agree that they are solely
responsible for making its own judgments in connection with the offering. The Company and the
Subsidiary Guarantors agree that they will not claim that the Underwriters owe a fiduciary duty to
the Company or any Subsidiary Guarantor, in connection with such transaction or the process leading
thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The Company and the Subsidiary Guarantors hereby
irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
22
20. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Effective Date.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared
and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time when sales of the Securities were first
made.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule
23
424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended
on each Effective Date and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration statement as so
amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” , and “Rule 433” refer to such rules under the Act.
“subsidiary” shall mean any corporation, limited partnership, limited liability
company, or other entity with respect to which the Company (or a subsidiary thereof) owns a
majority of the common stock, units or other equity interests or has the power to vote or
direct the voting of sufficient securities to elect a majority of the directors or general
partners, as the case may be.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in
Rule 405.
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Subsidiary Guarantors and the several
Underwriters.
24
| Very truly yours, Lear Corporation |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| Lear Argentine Holdings Corporation #2 Lear Automotive Dearborn, Inc. Lear Corporation (Germany) Ltd. Lear Corporation EEDS and Interiors Lear Corporation Global Development, Inc. Lear European Operations Corporation Lear Mexican Holdings Corporation Lear Mexican Seating Corporation Lear Operations Corporation Lear Seating Holdings Corp. #50 Lear South American Holdings Corporation Renosol Seating, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President | |||
| Lear #50 Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear South American Holdings Corporation, Sole Member of Lear #50 Holdings, LLC | |||
| Lear Automotive Manufacturing, LLC Lear Investments Company, L.L.C. |
||||
| By: | /s/ Shari L. Burgess | |||
| Name: | Shari L. Burgess | |||
| Title: | Vice President and Treasurer | |||
| Lear EEDS Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Argentine Holdings Corporation #2, Sole Member of Lear EEDS Holdings, LLC | |||
| Lear Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Argentine Holdings Corporation #2, Sole Member of Lear Holdings, LLC | |||
| Lear Mexican Holdings, L.L.C. |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Mexican Holdings Corporation, Sole Member of Lear Mexican Holdings, L.L.C. | |||
| Lear Trim L.P. |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Mexican
Holdings Corporation, General Partner of Lear Trim, L.P. |
|||
25
| The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto. Citigroup Global Markets Inc. |
||||
| By: | /s/ Barbara R. Matas | |||
| Name: | Barbara R. Matas | |||
| Title: | Managing Director | |||
| For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. |
||||
26
SCHEDULE I
Underwriting Agreement dated March 23, 2010
Registration Statement No. 333-165593
Representative(s): Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Barclays Capital
Inc. and UBS Securities LLC
Title, Purchase Price and Description of Securities:
| Title: | 7.875% Senior Notes due 2018 | 8.125% Senior Notes due 2020 | ||||||
| Principal amount: | $350,000,000 | $350,000,000 | ||||||
| Purchase price (include accrued interest or amortization, if any): | $340,888,469 | $340,503,889 | ||||||
| Sinking fund provisions: | None | None | ||||||
| Redemption provisions: | At any time on or after March 15, 2014, we may redeem some or all of the 2018 notes at the following redemption prices (expressed as percentages of principal amount), plus accrued and unpaid interest to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date) if redeemed during the 12-month period commencing on March 15 of the years set forth below: | At any time on or after March 15, 2015, we may redeem some or all of the 2020 notes at the following redemption prices (expressed as percentages of principal amount), plus accrued and unpaid interest to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date) if redeemed during the 12-month period commencing on March 15 of the years set forth below: | ||||||
| 2014 | 103.938% | 2015 | 104.063% | |||||
| 2015 | 101.969% | 2016 | 102.708% | |||||
| 2016 and thereafter | 100.000% | 2017 | 101.354% | |||||
| 2018 and thereafter | 100.000% | |||||||
| Prior to March 15, 2014, during any 12-month period, we may at our option redeem up to 10% of the aggregate principal amount of the 2018 notes at a redemption price equal to 103% of the principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date. | Prior to March 15, 2015, during any 12-month period, we may at our option redeem up to 10% of the aggregate principal amount of the 2020 notes at a redemption price equal to 103% of the principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date. | |||||||
| Prior to March 15, 2014, we may also redeem some or all of the 2018 notes at a redemption price equal to 100% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date plus a “make-whole” premium. | Prior to March 15, 2015, we may also redeem some or all of the 2020 notes at a redemption price equal to 100% of the aggregate principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date plus a “make-whole” premium. | |||||||
| At any time prior to March 15, 2013, we may redeem up to 35% of the aggregate principal amount of the 2018 notes in an amount not to exceed the amount of proceeds of one or more equity offerings, at a price equal to 107.875% of the principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date, provided that at least 65% of the original aggregate principal amount of the 2018 notes issued remains outstanding after the redemption. | At any time prior to March 15, 2013, we may redeem up to 35% of the aggregate principal amount of the 2020 notes in an amount not to exceed the amount of proceeds of one or more equity offerings, at a price equal to 108.125% of the principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date, provided that at least 65% of the original aggregate principal amount of the 2020 notes issued remains outstanding after the redemption. | |||||||
Closing Date, Time and Location: Friday, March 26, 2010 at 10:00 a.m. at Weil, Gotshal &
Manges LLP, 767 Fifth Avenue, New York, New York 10153
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Company may offer or sell debt securities issued
or guaranteed by the Company without the consent of the Representative(s): May 25, 2010
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6 at the Execution Time: None.
Ernst & Young LLP delivered pursuant to
Section 6 at the Execution Time: None.
SCHEDULE II
| Principal Amount | Principal Amount | |||||||
| of 2018 Notes to | of 2020 Notes to | |||||||
| Underwriters | be Purchased | be Purchased | ||||||
Citigroup Global Markets Inc. |
$ | 119,000,000 | $ | 119,000,000 | ||||
J.P. Morgan Securities Inc. |
119,000,000 | 119,000,000 | ||||||
Barclays Capital Inc. |
49,000,000 | 49,000,000 | ||||||
UBS Securities LLC |
49,000,000 | 49,000,000 | ||||||
HSBC Securities (USA) Inc. |
14,000,000 | 14,000,000 | ||||||
Total |
$ | 350,000,000 | $ | 350,000,000 | ||||
Exhibit 4.1
EXECUTION VERSION
EXECUTION VERSION
LEAR CORPORATION
AND THE
SUBSIDIARY GUARANTORS PARTY HERETO
To
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A
TRUST COMPANY, N.A
Trustee
INDENTURE
Dated as
of March 26, 2010
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
| TRUST INDENTURE | INDENTURE | |||||
| ACT SECTION | SECTION(S) | |||||
Section 310
|
(a)(1) | 609 | ||||
| (a)(2) | 609 | |||||
| (a)(3) | Not Applicable | |||||
| (a)(4) | Not Applicable | |||||
| (b) | 608, 610 | |||||
Section 311
|
(a) | 613 | ||||
| (b) | 613 | |||||
Section 312
|
(a) | 701, 702 | ||||
| (b) | 702 | |||||
| (c) | 702 | |||||
Section 313
|
(a) | 703 | ||||
| (b) | 703 | |||||
| (c) | 703 | |||||
| (d) | 703 | |||||
Section 314
|
(a) | 704 | ||||
| (a)(4) | 101, 1004 | |||||
| (b) | Not Applicable | |||||
| (c)(1) | 102 | |||||
| (c)(2) | 102 | |||||
| (c)(3) | Not Applicable | |||||
| (d) | Not Applicable | |||||
| (e) | 102 | |||||
Section 315
|
(a) | 601 | ||||
| (b) | 602 | |||||
| (c) | 601 | |||||
| (d) | 601 | |||||
| (e) | 514 | |||||
Section 316
|
(a) | 101 | ||||
| (a)(1)(A) | 502, 512 | |||||
| (a)(1)(B) | 513 | |||||
| (a)(2) | Not Applicable | |||||
| (b) | 508 | |||||
| (c) | 104 | |||||
Section 317
|
(a)(1) | 503 | ||||
| (a)(2) | 504 | |||||
| (b) | 1003 | |||||
Section 318
|
(a) | 107 | ||||
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.
TABLE OF CONTENTS
| Page | ||||||
ARTICLE ONE |
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 1 | ||||
SECTION 101. |
Definitions | 1 | ||||
SECTION 102. |
Compliance Certificates and Opinions | 8 | ||||
SECTION 103. |
Form of Documents Delivered to Trustee | 8 | ||||
SECTION 104. |
Acts of Holders; Record Dates | 9 | ||||
SECTION 105. |
Notices, Etc., to Trustee and Company | 11 | ||||
SECTION 106. |
Notice to Holders; Waiver | 11 | ||||
SECTION 107. |
Conflict with Trust Indenture Act | 12 | ||||
SECTION 108. |
Effect of Headings and Table of Contents | 12 | ||||
SECTION 109. |
Successors and Assigns | 12 | ||||
SECTION 110. |
Separability Clause | 12 | ||||
SECTION 111. |
Benefits of Indenture | 12 | ||||
SECTION 112. |
Governing Law; Waiver of Trial by Jury | 13 | ||||
SECTION 113. |
Legal Holidays | 13 | ||||
SECTION 114. |
Counterparts | 13 | ||||
ARTICLE TWO |
SECURITY FORMS | 13 | ||||
SECTION 201. |
Forms Generally | 13 | ||||
SECTION 202. |
Form of face of Security | 14 | ||||
SECTION 203. |
Form of Reverse of Security | 16 | ||||
SECTION 204. |
Form of Notation of Subsidiary Guarantee | 21 | ||||
SECTION 205. |
Form of Legend for Global Securities | 21 | ||||
SECTION 206. |
Form of Trustee’s Certificate of Authentication | 22 | ||||
ARTICLE THREE |
THE SECURITIES | 22 | ||||
SECTION 301. |
Amount Unlimited; Issuable in Series | 22 | ||||
SECTION 302. |
Denominations | 26 | ||||
SECTION 303. |
Execution, Authentication, Delivery and Dating | 26 | ||||
SECTION 304. |
Temporary Securities | 28 | ||||
SECTION 305. |
Registration, Registration of Transfer and Exchange | 29 | ||||
SECTION 306. |
Mutilated, Destroyed, Lost and Stolen Securities | 31 | ||||
SECTION 307. |
Payment of Interest; Interest Rights Preserved; Optional Interest Reset | 32 | ||||
SECTION 308. |
Optional Extension of Maturity | 34 | ||||
SECTION 309. |
Persons Deemed Owners | 35 | ||||
SECTION 310. |
Cancellation | 36 | ||||
SECTION 311. |
Computation of Interest; Usury Not Intended | 36 | ||||
SECTION 312. |
CUSIP or ISIN Numbers | 36 | ||||
ARTICLE FOUR |
SATISFACTION AND DISCHARGE | 37 | ||||
i
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||||
SECTION 401. |
Satisfaction and Discharge of Indenture | 37 | ||||
SECTION 402. |
Application of Trust Money | 38 | ||||
ARTICLE FIVE |
REMEDIES | 38 | ||||
SECTION 501. |
Events of Default | 38 | ||||
SECTION 502. |
Acceleration of Maturity; Rescission and Annulment | 40 | ||||
SECTION 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 41 | ||||
SECTION 504. |
Trustee May File Proofs of Claim | 42 | ||||
SECTION 505. |
Trustee May Enforce Claims Without Possession of Securities | 42 | ||||
SECTION 506. |
Application of Money Collected | 42 | ||||
SECTION 507. |
Limitation on Suits | 43 | ||||
SECTION 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest | 43 | ||||
SECTION 509. |
Restoration of Rights and Remedies | 44 | ||||
SECTION 510. |
Rights and Remedies Cumulative | 44 | ||||
SECTION 511. |
Delay or Omission Not Waiver | 44 | ||||
SECTION 512. |
Control by Holders | 44 | ||||
SECTION 513. |
Waiver of Past Defaults | 45 | ||||
SECTION 514. |
Undertaking for Costs | 45 | ||||
SECTION 515. |
Waiver of Usury, Stay or Extension Laws | 45 | ||||
ARTICLE SIX |
THE TRUSTEE | 46 | ||||
SECTION 601. |
Certain Duties and Responsibilities | 46 | ||||
SECTION 602. |
Notice of Defaults | 46 | ||||
SECTION 603. |
Certain Rights of Trustee | 46 | ||||
SECTION 604. |
Not Responsible for Recitals or Issuance of Securities | 48 | ||||
SECTION 605. |
May Hold Securities | 48 | ||||
SECTION 606. |
Money Held in Trust | 48 | ||||
SECTION 607. |
Compensation and Reimbursement | 48 | ||||
SECTION 608. |
Conflicting Interests | 50 | ||||
SECTION 609. |
Corporate Trustee Required; Eligibility | 50 | ||||
SECTION 610. |
Resignation and Removal; Appointment of Successor | 50 | ||||
SECTION 611. |
Acceptance of Appointment by Successor | 51 | ||||
SECTION 612. |
Merger, Conversion, Consolidation or Succession to Business | 52 | ||||
SECTION 613. |
Preferential Collection of Claims Against Company and Subsidiary Guarantors | 53 | ||||
SECTION 614. |
Appointment of Authenticating Agent | 53 | ||||
ARTICLE SEVEN |
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | 55 | ||||
ii
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||||
SECTION 701. |
Company to Furnish Trustee Names and Addresses of Holders | 55 | ||||
SECTION 702. |
Preservation of Information; Communications to Holders | 55 | ||||
SECTION 703. |
Reports by Trustee | 55 | ||||
SECTION 704. |
Reports by Company and Subsidiary Guarantors | 56 | ||||
ARTICLE EIGHT |
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | 56 | ||||
SECTION 801. |
Company May Consolidate, Etc., Only on Certain Terms | 56 | ||||
SECTION 802. |
Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms | 57 | ||||
SECTION 803. |
Successor Substituted | 57 | ||||
ARTICLE NINE |
SUPPLEMENTAL INDENTURES | 58 | ||||
SECTION 901. |
Supplemental Indentures Without Consent of Holders | 58 | ||||
SECTION 902. |
Supplemental Indentures With Consent of Holders | 60 | ||||
SECTION 903. |
Execution of Supplemental Indentures | 61 | ||||
SECTION 904. |
Effect of Supplemental Indentures | 62 | ||||
SECTION 905. |
Conformity with Trust Indenture Act | 62 | ||||
SECTION 906. |
Reference in Securities to Supplemental Indentures | 62 | ||||
ARTICLE TEN |
COVENANTS | 62 | ||||
SECTION 1001. |
Payment of Principal, Premium and Interest | 62 | ||||
SECTION 1002. |
Maintenance of Office or Agency | 62 | ||||
SECTION 1003. |
Money for Securities Payments to Be Held in Trust | 63 | ||||
SECTION 1004. |
Statement by Officers as to Default | 64 | ||||
SECTION 1005. |
Existence | 64 | ||||
SECTION 1006. |
Waiver of Certain Covenants | 64 | ||||
ARTICLE ELEVEN |
REDEMPTION OF SECURITIES | 65 | ||||
SECTION 1101. |
Applicability of Article | 65 | ||||
SECTION 1102. |
Election to Redeem; Notice to Trustee | 65 | ||||
SECTION 1103. |
Selection by Trustee of Securities to Be Redeemed | 65 | ||||
SECTION 1104. |
Notice of Redemption | 66 | ||||
SECTION 1105. |
Deposit of Redemption Price | 67 | ||||
SECTION 1106. |
Securities Payable on Redemption Date | 67 | ||||
SECTION 1107. |
Securities Redeemed in Part | 67 | ||||
ARTICLE TWELVE |
SINKING FUNDS | 67 | ||||
SECTION 1201. |
Applicability of Article | 68 | ||||
SECTION 1202. |
Satisfaction of Sinking Fund Payments with Securities | 68 | ||||
iii
TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||||
SECTION 1203. |
Redemption of Securities for Sinking Fund | 68 | ||||
ARTICLE THIRTEEN |
SUBSIDIARY GUARANTEES | 68 | ||||
SECTION 1301. |
Applicability of Article | 69 | ||||
SECTION 1302. |
Subsidiary Guarantees | 69 | ||||
SECTION 1303. |
Execution and Delivery of Notations of Subsidiary Guarantees | 70 | ||||
SECTION 1304. |
Release of Subsidiary Guarantors | 71 | ||||
SECTION 1305. |
Limitation on Liability | 71 | ||||
ARTICLE FOURTEEN |
REPAYMENT AT THE OPTION OF THE HOLDERS | 71 | ||||
SECTION 1401. |
Applicability of Article | 71 | ||||
SECTION 1402. |
Repayment of Securities | 71 | ||||
SECTION 1403. |
Exercise of Option | 72 | ||||
SECTION 1404. |
When Securities Presented for Repayment Become Due and Payable | 72 | ||||
SECTION 1405. |
Securities Repaid in Part | 73 | ||||
ARTICLE FIFTEEN |
DEFEASANCE AND COVENANT DEFEASANCE | 73 | ||||
SECTION 1501. |
Company’s Option to Effect Defeasance or Covenant Defeasance | 73 | ||||
SECTION 1502. |
Defeasance and Discharge | 73 | ||||
SECTION 1503. |
Covenant Defeasance | 74 | ||||
SECTION 1504. |
Conditions to Defeasance or Covenant Defeasance | 74 | ||||
SECTION 1505. |
Acknowledgment of Discharge By Trustee | 76 | ||||
SECTION 1506. |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions | 76 | ||||
SECTION 1507. |
Reinstatement | 77 | ||||
SECTION 1508. |
Qualifying Trustee | 77 | ||||
ARTICLE SIXTEEN |
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES | 77 | ||||
SECTION 1601. |
Exemption from Individual Liability | 77 | ||||
| SCHEDULE I — Subsidiary Guarantors | ||||||
iv
INDENTURE (herein called this “Indenture”), dated as of , among Lear Corporation, a
corporation duly organized and existing under the laws of the State of Delaware (herein called the
“Company”), having its principal office at 21557 Telegraph Road, Southfield Michigan, 48033, each
Subsidiary Guarantor (as hereinafter defined) and The Bank of New York Mellon Trust Company, N.A.,
a national banking association having an office in Chicago, Illinois, as Trustee (herein called the
“Trustee”).
RECITALS
The Company and the Subsidiary Guarantors have 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 (herein called the “Securities”) and Subsidiary Guarantees to be issued
in one or more series as in this Indenture provided.
The Company and the Subsidiary Guarantors are members of the same consolidated group of
companies. The Subsidiary Guarantors will derive direct and indirect economic benefit from the
issuance of the Securities. Accordingly, each Subsidiary Guarantor has duly authorized the
execution and delivery of this Indenture to provide for its full, unconditional and joint and
several guarantee of the Securities to the extent provided in or pursuant to this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, and the
Subsidiary Guarantors in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to them in this Article
One and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States of America, and,
except as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the
date of such computation, provided that when two or more principles are so generally accepted,
it shall mean that set of principles consistent with those in use by the Company;
(4) unless the context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or a Section, as the case may be, of this Indenture;
(5) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision;
(6) words importing any gender include the other genders;
(7) references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to;
(8) references to “writing” include printing, typing, lithography and other means of
reproducing words in a tangible, visible form;
(9) the words “including,” “includes” and “include” shall be deemed to be followed by the
words “without limitation”; and
(10) unless otherwise provided, references to agreements and other instruments shall be deemed
to include all amendments and other modifications to such agreements and instruments, but only to
the extent such amendments and other modifications are not prohibited by the terms of this
Indenture.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition,
“control” when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board and with respect to any Subsidiary Guarantor, the board of directors of
such Subsidiary Guarantor, any duly authorized committee of that board or any similar governing
body.
“Board Resolution” means with respect to the Company or a Subsidiary Guarantor, a copy of a
resolution certified by the Corporate Secretary, an Assistant Corporate Secretary or an Associate
Secretary of the Company or such Subsidiary Guarantor, as the case may be, to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors or
2
officers of the Company or any Subsidiary Guarantor to which authority to act on behalf of the
Board of Directors has been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
“Commission” means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” mean, respectively, a written request or order signed in
the name of the Company by its Chairman of the Board, its Chief Executive Officer, a Vice Chairman
of the Board, its Chief Financial Officer, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Corporate Secretary, an Assistant Corporate Secretary or an Associate
Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602.
“Corporation” means a corporation, association, company, limited liability company,
joint-stock company or business or statutory trust.
“Covenant Defeasance” has the meaning specified in Section 1503.
“Defaulted Interest” has the meaning specified in Section 307(a).
“Defeasance” has the meaning specified in Section 1502.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
“Exchange Rate” has the meaning specified in Section 501.
“Expiration Date” has the meaning specified in Section 104.
3
“Extension Notice” has the meaning specified in Section 308.
“Extension Period” has the meaning specified in Section 308.
“Final Maturity” has the meaning specified in Section 308.
“Global Security” means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 205 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
“Interest”, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
“Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
“Maturity”, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal or premium, if any, becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
“Maximum Interest Rate” has the meaning specified in Section 311.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officers’ Certificate” means a certificate signed by the Chairman of the Board, the Chief
Executive Officer, a Vice Chairman of the Board, the Chief Financial Officer, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Corporate Secretary, an Assistant
Corporate Secretary or an Associate Secretary of the Company or a Subsidiary Guarantor, as the case
may be, and delivered to the Trustee.
“Opinion of Counsel” means as to the Company or a Subsidiary Guarantor, a written opinion of
counsel, who may be counsel for the Company or such Subsidiary Guarantor (and who may be an
employee of the Company or such Subsidiary Guarantor) as the case may be, and who shall be
acceptable to the Trustee.
4
“Optional Reset Date” has the meaning specified in Section 307(b).
“Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
“Original Stated Maturity” has the meaning specified in Section 308.
“Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and irrevocably segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1502; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if,
as of such date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be Outstanding shall
be the amount as specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies or currency units which shall be deemed
to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 301, of the principal amount of such Security (or, in the case
of a Security described in Clause (A) or (B) above, of the amount determined as provided in such
Clause), and (D) Securities owned by the Company, any Subsidiary Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, any Subsidiary Guarantor or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes
5
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company, a Subsidiary Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, a Subsidiary Guarantor or of such other
obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company. The Company initially authorizes
and appoints the Trustee as the Paying Agent for each series of the Securities.
“Periodic Offering” means an offering of Securities of a series from time to time the specific
terms of which Securities, including the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
“Repayment Date” means, when used with respect to any Security to be repaid at the option of
the Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Reset Notice” has the meaning specified in Section 307(b).
“Responsible Officer,” when used with respect to The Bank of New York Mellon Trust Company,
N.A., as Trustee, means an officer in the Corporate Trust Office thereof having direct
responsibility for administration of this Indenture and, when used with respect to any successor
Trustee, means the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any assistant secretary, the
treasurer,
6
any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and, in each case, also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.
“Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section
305.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307(a).
“Stated Maturity”, when used with respect to any Security or any installment of principal
thereof or premium, if any, or interest thereon, means the date specified in such Security as the
fixed date on which the principal of or premium, if any, on such Security or such installment of
principal or interest is due and payable.
“Subsequent Interest Period” has the meaning specified in Section 307(b).
“Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock”
means stock which ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of any contingency.
“Subsidiary Guarantee” means the guarantee of each Subsidiary Guarantor as provided in Article
Thirteen.
“Subsidiary Guarantors” means (1) the subsidiaries listed in Schedule I hereto; (2)
each other Subsidiary of the Company that becomes a Subsidiary Guarantor in accordance with this
Indenture and (3) any successor of the foregoing, in each case (1), (2) and (3) until such
Subsidiary Guarantor ceases to be such in accordance with Section 1304 hereof.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable
7
provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who
is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of any series shall mean the Trustee with respect to Securities
of that series.
“U.S. Government Obligation” has the meaning specified in Section 1504.
“Vice President”, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”.
“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent redetermination of interest on such Security) and
as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any Subsidiary Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company and/or such Subsidiary
Guarantor, as appropriate, shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form
of an Officers’ Certificate, if to be given by an officer of the Company or a Subsidiary Guarantor,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture, other than an Officers’ Certificate required by Section 1004, shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, the individual has made or
caused to be made such examination or investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
8
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons may certify or give an opinion as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or a Subsidiary Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which such officer’s
certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or such Subsidiary Guarantor stating that
the information with respect to such factual matters is in the possession of the Company or such
Subsidiary Guarantor, unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section 104.
The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner which the Trustee deems sufficient. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
9
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be canceled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
10
writing and to each Holder of Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section 104, the party hereto which sets
such record dates may designate any day as the “Expiration Date” and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party hereto in writing,
and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on
or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section 104, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with
(1) the Trustee by any Holder or by the Company or any Subsidiary Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Finance, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, or via overnight delivery service, to the Company
addressed to the attention of the Treasurer of the Company at the address of the Company’s
principal office specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company and, in the case of any Subsidiary
Guarantor, to it at the address of the Company’s principal office specified in the first paragraph
of this instrument, Attention: Chief Financial Officer, or at any other address previously
furnished in writing to the Trustee by such Subsidiary Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by
11
mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or overnight delivery service, or
by reason of any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
The Trustee agrees to accept and act upon facsimile transmission of written instructions
pursuant to this Indenture; provided, however, that (a) the party providing such written
instructions, subsequent to such transmission of written instructions, shall provide the originally
executed instructions in a timely manner, and (b) such originally executed instructions or
directors shall be signed by an authorized representative of the party providing such instructions
or directions.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with a provision of the
Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the
Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any Subsidiary Guarantor
shall bind their successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
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.
SECTION 111. Benefits of Indenture.
12
Nothing in this Indenture or in the Securities express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law; Waiver of Trial by Jury.
THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities (other than a provision of any Security
which specifically states that such provision shall apply in lieu of this Section 113)) payment of
interest or principal (and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at the
Stated Maturity, and no additional interest shall accrue as the result of such delayed payment.
SECTION 114. Counterparts.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
ARTICLE TWO
SECURITY FORMS
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and, if applicable, the notations of Subsidiary Guarantees to be
endorsed thereon, and the Trustee’s certificate of authentication shall be in substantially the
form set forth in this Article Two, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with applicable tax laws
13
or the rules of any securities exchange or automated quotation system on which the Securities
of such series may be listed or traded or the rules of any Depositary therefor or as may,
consistently herewith, be determined to be appropriate by the officers executing such Securities or
notations of Subsidiary Guarantees, as the case may be, as evidenced by their execution thereof. If
the form or forms of Securities of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
The definitive Securities of each series shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, or engraved on steel engraved borders, if
required by any securities exchange or automated quotation system on which the Securities of such
series may be listed or traded, or may be produced in any other manner permitted by the rules of
any securities exchange or automated quotation system on which the Securities of such series may be
listed or traded, all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 202. Form of face of Security.
[INSERT ANY APPLICABLE LEGENDS]
LEAR CORPORATION
(Title of Security)
LEAR CORPORATION
(Title of Security)
No.
|
$ | |
| CUSIP No. |
Lear Corporation, a corporation duly organized and existing under the laws of the State of
Delaware (herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ______, or registered
assigns, the principal sum of ______ Dollars on ____________ [if the Security is to bear interest
prior to Maturity, insert —, and to pay interest thereon from ______ or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
____________ and ____________ in each year, commencing ______, at the rate of ____________ % per annum,
until the principal hereof is paid or made available for payment [if applicable, insert —,
provided that any principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of ___ % per annum (to the extent permitted by applicable law),
from the dates such amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. [If applicable, insert — The amount of interest payable for
any period shall be computed on the basis of twelve 30-day months and a 360-day year. In the event
that any date on which interest is payable on this Security is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay) with the same force
and effect as if made on the date the payment was originally payable.
14
A “Business Day” shall mean, when used with respect to any Place of Payment, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or executive order to close.] The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the ______ or ______ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities of this series may be listed or traded, and upon such
notice as may be required by such exchange or automated quotation system, all as more fully
provided in said Indenture.
[If the Security is not to bear interest prior to Maturity, insert — The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of ______ % per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand.]
Payment of the principal of (and premium, if any) and [if applicable, insert — any such]
interest on this Security will be made at the office or agency of the Paying Agent maintained for
that purpose in ______, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts [if applicable, insert —;
provided, however, that at the option of the Company payment of interest may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such place and to such account
as may be designated in writing by the Person entitled thereto as specified in the Security
Register at least fifteen days prior to the relevant Interest Payment Date].
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
15
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| Dated: | LEAR CORPORATION |
|||
| By: | ||||
| Attest: |
||||
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
[______] (herein called the “Indenture”, which term shall have the meaning assigned to it in such
instrument), among the Company, the Subsidiary Guarantors named therein and The Bank of New York
Mellon Trust Company, N.A., as Trustee (herein called the “Trustee”, which term includes any
successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Subsidiary Guarantors, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if applicable, insert
—, limited in aggregate principal amount to $______; provided, however, that the authorized
aggregate principal amount of the Securities may be increased above such amount by a Board
Resolution to such effect].
[If applicable, insert — The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on this Security may be reset by the Company on
______ (each an “Optional Reset Date”). The Company may exercise such option with respect to
this Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior
to an Optional Reset Date for this Security. If the Company exercises such option, not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for
in Section 106 of the Indenture, to the Holder of this Security a notice (the “Reset Notice”)
indicating that the Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and (i) such new interest rate (or
such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional Reset Date or if
there is no such next Optional Reset Date, to the Stated Maturity of this Security (each such
period a “Subsequent Interest Period”), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the
Trustee to transmit, in the
16
manner provided for in Section 106 of the Indenture, notice of such higher interest rate (or
such higher spread or spread multiplier, if applicable) to the Holder of this Security. Such notice
shall be irrevocable. All Securities of this series with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Securities have not tendered
such Securities for repayment (or have validly revoked any such tender) pursuant to the next
succeeding paragraph, will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).
The Holder of this Security will have the option to elect repayment by the Company of the
principal of this Security on each Optional Reset Date at a price equal to the principal amount
hereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen of the
Indenture for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered this Security for repayment pursuant to the
Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional Reset Date.]
[If applicable, insert — The Stated Maturity of this Security may be extended at the option
of the Company for ______ (each an “Extension Period”) up to but not beyond ______ (the “Final
Maturity”). The Company may exercise such option with respect to this Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of this
Security in effect prior to the exercise of such option (the “Original Stated Maturity”). If the
Company exercises such option, the Trustee shall transmit, in the manner provided for in Section
106 of the Indenture, to the Holder of this Security not later than 40 days prior to the Original
Stated Maturity a notice (the “Extension Notice”) indicating (i) the election of the Company to
extend the Maturity, (ii) the new Stated Maturity, (iii) the interest rate applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon
the Trustee’s transmittal of the Extension Notice, the Stated Maturity of this Security shall be
extended automatically and, except as modified by the Extension Notice and as described in the next
paragraph, this Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of
this Security, the Company may, at its option, revoke the interest rate provided for in the
Extension Notice and establish a higher interest rate for the Extension Period by causing the
Trustee to transmit, in the manner provided for in Section 106 of the Indenture, notice of such
higher interest rate to the Holder of this Security. Such notice shall be irrevocable. All
Securities of this series with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Maturity of this Security, the Holder will have the option to elect
repayment of this Security by the Company on the Original Stated Maturity at a price equal to the
principal amount hereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity hereof, the Holder hereof must
follow the procedures set forth in Article Thirteen of the Indenture for repayment at
17
the option of Holders, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except
that, if the Holder has tendered this Security for repayment pursuant to an Extension Notice, the
Holder may, by written notice to the Trustee, revoke such tender for repayment until the close of
business on the tenth day before the Original Stated Maturity.]
[If applicable, insert — The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail, [if applicable, insert — (1) on ______ in any year commencing with
the year ______ and ending with the year ______ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert — on or after ______, 20__], as a whole or in part, at the election of the
Company, at [if applicable, insert — a redemption price equal to [calculation to be specified]]
with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on
or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, (1) on ______ in any year commencing with the year ______
and ending with the year ______ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if applicable, insert —
on or after ______], as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning ______ of the years indicated,
| Redemption Price For | Redemption Price For | |||
| Redemption Through | Redemption Otherwise Than | |||
| Operation of the | Through Operation of the | |||
| Year | Sinking Fund | Sinking Fund | ||
and thereafter at a Redemption Price equal to ______% of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to
______, redeem any Securities of this series as contemplated by [if applicable, insert — Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less than ______% per annum.]
18
[If applicable, insert — The sinking fund for this series provides for the redemption on
______ in each year beginning with the year ______ and ending with the year of [if applicable,
insert — not less than $______ (“mandatory sinking fund”) and not more than] $______ aggregate
principal amount of Securities of this series. Securities of this series acquired or redeemed by
the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may
be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise
required to be made [if applicable, insert —, in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert — In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[If applicable, insert — The Securities of this series are not subject to redemption by the
Company prior to their Stated Maturity and will not be entitled to the benefit of any sinking
fund.]
[If applicable, insert — As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under this Security are guaranteed pursuant to
the Indenture as indicated in the notation of Subsidiary Guarantee endorsed hereon. The Indenture
provides that a Subsidiary Guarantor shall be released from its Subsidiary Guarantee upon
compliance with certain conditions.]
The Indenture contains provisions for satisfaction and discharge of the entire indebtedness of
this Security upon compliance by the Company with certain conditions set forth in the Indenture.
[If applicable, insert — The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain covenants and Events of Default with respect to
this Security] [, in each case] upon compliance with certain conditions set forth in the
Indenture.]
[If the Security is not an Original Issue Discount Security, insert — If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert — If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
19
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of all series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of all series to be affected, treated as one class. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity reasonably satisfactory to it, the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute any such proceeding,
for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective due dates expressed
or provided for herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees. No service charge shall be made for any such registration of transfer or
exchange, but the Company and the Security Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
20
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered form without coupons in
denominations of $______ and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Notation of Subsidiary Guarantee.
NOTATION OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.
The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article Thirteen
of the Indenture and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee.
| [Insert Names of Subsidiary Guarantors] |
||||
| By: | ||||
| Title: | ||||
SECTION 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the following form:
21
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
SECTION 206. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
| Date: | The Bank of New York Mellon Trust Company, N.A., As Trustee |
|||
| By: | ||||
| Authorized Signatory | ||||
ARTICLE THREE
THE SECURITIES
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
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 in or pursuant
to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers’ Certificate or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);
(2) if the Securities of the series will not have the benefit of the Subsidiary
Guarantees of the Subsidiary Guarantors;
(3) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1405 and except for
any Securities which, pursuant to Section 303, are deemed never to
22
have been authenticated and delivered hereunder); provided, however, that the
authorized aggregate principal amount of such series may from time to time be increased
above such amount by a Board Resolution to such effect;
(4) the date or dates on which the principal of any Securities of the series is
payable, or the method by which such date or dates shall be determined or extended;
(5) the rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any Interest Payment Date, or the
method by which such date or dates shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day months, the right,
if any, to extend or defer interest payments and the duration of such extension or deferral;
(6) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable, the place or places where the Securities of such
series may be presented for registration of transfer or exchange, and the place or places
where notices and demands to or upon the Company in respect of the Securities of such series
may be made;
(7) the right, if any, to defer payment of interest payable on any Interest Payment
date and the duration of any such deferral period;
(8) the rate or rates of amortization of the Securities, if any;
(9) the period or periods within or the date or dates on which, the price or prices at
which and the term and conditions upon which any Securities of the series may be redeemed,
in whole or in part, at the option of the Company and, if other than by a Board Resolution,
the manner in which any election by the Company to redeem the Securities shall be evidenced;
(10) the obligation or the right, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund, amortization or analogous provisions
or at the option of the Holder thereof and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or units) in which and
the other terms and conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(11) if other than minimum denominations of $2,000 and integral multiples of $1,000,
the denominations in which any Securities of the series shall be issuable;
(12) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
23
(13) if other than the currency of the United States of America, the currency,
currencies or currency units, including composite currencies, in which any Securities of the
series shall be denominated and in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 101;
(14) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is made shall be payable,
the period or periods within or the date or dates on which and the terms and conditions upon
which such election is to be made and the amount so payable (or the manner in which such
amount shall be determined);
(15) the percentage of the principal amount at which such Securities will be issued
and, if other than the principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the method by which such portion shall be
determined;
(16) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal amount shall be
determined);
(17) if applicable, that the Securities of the series, in whole or any specified part,
shall not be defeasible or shall be defeasible in a manner varying from Section 1502 and
Section 1503 and, if other than by a Board Resolution, the manner in which any election by
the Company to defease such Securities shall be evidenced;
(18) whether the Securities of the series, or any portion thereof, shall initially be
issuable in the form of a temporary Global Security representing all or such portion of the
Securities of such series and provisions for the exchange of such temporary Global Security
for one or more permanent Global Securities or definitive Securities of such series;
(19) if applicable, that any Securities of the series, or any portion thereof, shall be
issuable in whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition to or in lieu of that set forth
in Section 205 and any circumstances in addition to or in lieu of those set forth
24
in Clause (2) of the last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered, and any transfer of such
Global Security in whole or in part may be registered, in the name or names of Persons other
than the Depositary for such Global Security or a nominee thereof;
(20) if applicable, that the Securities of the series, in whole or any specified part,
shall be subject to the optional interest reset provisions of Section 307(b);
(21) if applicable, that the Securities of the series, in whole or any specified part,
shall be subject to the optional extension of maturity provisions of Section 308;
(22) any deletion or addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant
to Section 502 or in any other remedies provided in Article Five;
(23) any addition to or change in the covenants set forth in Article Ten which applies
to Securities of the series;
(24) the additions or changes, if any, to this Indenture with respect to the Securities
of such series as shall be necessary to permit or facilitate the issuance of the Securities
of such series in bearer form, registrable or not registrable as to principal, and with or
without interest coupons;
(25) if there is more than one Trustee or a Trustee other than The Bank of New York
Mellon Trust Company, N.A., the identity of the Trustee and, if not the Trustee, the
identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to
such Securities;
(26) the terms of any right or obligation to convert or exchange Securities of such
series into any other securities or property of the Company or of any other corporation or
Person, and the additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or exchange;
(27) the terms and conditions, if any, pursuant to which the Securities of the series
are secured;
(28) any restriction or condition on the transferability of the Securities of such
series;
(29) the Person to whom any interest on any 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 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 Section
304;
25
(30) whether and under what circumstances the Company will pay Additional Amounts on
the Securities of the series to any Holder in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such option);
(31) the exchanges, if any, on which the Securities may be listed; and
(32) any other additional, eliminated or changed terms of the Securities of such series
(which terms shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 901).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided herein or in or pursuant to the Board Resolution referred
to above and (subject to Section 303) set forth, or determined in the manner provided, in the
Officers’ Certificate or Company Order referred to above or in any such indenture supplemental
hereto.
If any of the terms of the Securities of any series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers’ Certificate or Company Order setting forth the terms
or the manner of determining the terms of the series.
The Securities of each series shall have the benefit of the Subsidiary Guarantees unless the
Company elects otherwise upon the establishment of a series pursuant to this Section 301.
With respect to Securities of a series offered in a Periodic Offering, the Board Resolution
(or action taken pursuant thereto), Officers’ Certificate, Company Order or supplemental indenture
referred to above may provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be specified in a
further Company Order or that such terms shall be determined by the Company in accordance with
other procedures specified in the Company Order contemplated by the third paragraph of Section 303.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $2,000 and integral multiples of $1,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its Vice Chairman of the Board, its Chief Financial Officer, its
26
President or one of its Vice Presidents, and attested by its Corporate Secretary, an Assistant
Corporate Secretary, an Associate Secretary or an Attesting Secretary. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company, and if applicable, having
endorsed thereon the notations of Subsidiary Guarantees executed as provided in Section 1303 by the
Subsidiary Guarantors to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that in the case of
Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures (including the receipt by the
Trustee of oral or electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication of Securities of such
series. If the form or terms of the Securities of the series have been established by or pursuant
to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(1) if the form or forms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 201, that such form or forms have been established in conformity
with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of Securities of a series
offered in a Periodic Offering, will be, established by or pursuant to Board Resolution as
permitted by Section 301, that such terms have been, or in the case of Securities of a series
offered in a Periodic Offering, will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a series offered in a Periodic Offering, to any
conditions specified in such Opinion of Counsel; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, and, if applicable, the notations
of Subsidiary Guarantees endorsed thereon will constitute valid and legally binding obligations of
the Subsidiary Guarantors, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
If such forms or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s
27
own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate or Company Order otherwise required pursuant to Section 301 or
the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at
or prior to the authentication of each Security of such series if such documents are delivered at
or prior to the authentication upon original issuance of the first Security of such series to be
issued. This paragraph shall not be applicable to Securities of a series that are issued pursuant
to the proviso to Section 301(3).
Each Security shall be dated the date of its authentication.
With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities, the form or forms and terms
thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such series.
No Security or Subsidiary Guarantee shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the Trustee by the manual
signature of one of its authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in Section 310, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities of such series, and if
applicable, having endorsed thereon the notations of Subsidiary Guarantees, in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities and, if applicable, notations of Subsidiary Guarantees, may
determine, as evidenced by their execution of such Securities and notations of Subsidiary
Guarantees.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series
28
at the office or agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any authorized denominations and
of like tenor and aggregate principal amount and, if applicable, having endorsed thereon the
notations of Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office being herein sometimes referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The Trustee is hereby
appointed “Security Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided. If in accordance with Section 301(6), the Company designates a
transfer agent (in addition to the Security Registrar) with respect to any series of Securities,
the Company may at any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent acts, provided that the Company maintains a
transfer agent in each Place of Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Securities.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute and, if
applicable, the Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed
thereon, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized denominations and
of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute and, if applicable, the Subsidiary
Guarantors shall execute the notations of Subsidiary Guarantees endorsed thereon, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
29
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company and the Security Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities.
If the Securities of any series are to be redeemed in part, neither the Trustee nor the
Company shall be required, pursuant to the provisions of this Section 305, (A) to issue, register
the transfer of or exchange any Securities of any series (or of any series and specified tenor, as
the case may be) during a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of any such Securities selected for redemption under Section 1103
and ending at the close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption, in whole or in part, except, in the case of
any Security to be redeemed in part, any portion not to be redeemed.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security, (ii) defaults in the
performance of its duties as Depositary, or (iii) has ceased to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to be so registered to act as
depositary, in each case, unless the Company has approved a successor Depositary within 90 days
after receipt of such notice or after it has become aware of such default or cessation, (B) the
Company in its sole discretion determines, subject to the procedures of the Depositary, that such
Global Security will be so exchangeable or transferable or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section 305, Section 304, 306, 906, 1107 or 1405 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security is registered in the name of
a Person other than the Depositary for such Global Security or a nominee thereof.
30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and, if applicable, the Subsidiary Guarantors shall execute the notations of
Subsidiary Guarantees endorsed thereon, and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding and shall cancel and dispose of such mutilated Security in
accordance with its customary procedures.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding and, if applicable, the
Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed thereon. If,
after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of
which such new Security was issued presents for payment or registration such original Security, the
Trustee shall be entitled to recover such new Security from the party to whom it was delivered or
any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred
by the Company and the Trustee in connection therewith and shall cancel and dispose of such new
Security in accordance with its customary procedures.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section 306, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of counsel to the Company
and the fees and expenses of the Trustee, its agents and counsel) connected therewith.
Every new Security of any series issued pursuant to this Section 306 in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
31
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security of any series which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid. The initial payment
of interest on any Security of any series which is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or in or pursuant to
the Board Resolution, Officers’ Certificate, Company Order or supplemental indenture pursuant to
Section 301 with respect to the related series of Securities. Except in the case of a Global
Security, at the option of the Company, interest on any series of Securities may be paid (i) by
check mailed to the address of the Person entitled thereto as it shall appear on the Security
Register of such series or (ii) by wire transfer in immediately available funds at such place and
to such account as designated in writing by the Person entitled thereto as specified in the
Security Register of such series at least fifteen days prior to the relevant Interest Payment Date.
Any Paying Agents will be identified in accordance with Section 301, except for the Trustee,
who has been appointed as Paying Agent for the Securities as provided in the definition of “Paying
Agent” contained in Section 101. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent; however, the Company at all times will be required to
maintain a Paying Agent in each Place of Payment for each series of Securities.
Unless otherwise provided as contemplated by Section 301 with respect to any series of
Securities, any interest on any Security of any series which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series in respect of which interest is in default (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this Clause
(1). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days
32
after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange or
automated quotation system on which such Securities may be listed or traded, and upon such notice
as may be required by such exchange or automated quotation system, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(b) The provisions of this Section 307(b) may be made applicable to any series of Securities
pursuant to Section 301 (with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an “Optional Reset
Date”). The Company may exercise such option with respect to such Security by notifying the Trustee
of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such
Security, such notice (the “Reset Notice”) to contain the information to be included in the
Trustee’s notice referred to in the following sentence. If the Company exercises such option, not
later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of any such Security the Reset Notice indicating that
the Company has elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and (i) such new interest rate (or such new spread or
spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period
from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional
Reset Date, to the Stated Maturity of such Security (each such period a “Subsequent Interest
Period”), including the date or dates on which or the period or periods during which and the price
or prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest rate, if
applicable)
33
that is higher than the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice (prepared by the Company) of such
higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of
such Security. Such notice shall be irrevocable. All Securities with respect to which the interest
rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is
reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not
tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the
next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by the Company of the
principal of such Security on each Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except
that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 307 and Section 305, each Security
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Optional Extension of Maturity.
The provisions of this Section 308 may be made applicable to any series of Securities pursuant
to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to
such Section 301). The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security (each an “Extension
Period”) up to but not beyond the date (the “Final Maturity”) set forth on the face of such
Security. The Company may exercise such option with respect to any Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such
Security in effect prior to the exercise of such option (the “Original Stated Maturity”), such
notice (the “Extension Notice) to contain the information to be included in the Trustee’s notice
referred to in the following sentence. If the Company exercises such option, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of such Security not later than
40 days prior to the Original Stated Maturity the “Extension Notice” indicating (i) the election of
the Company to extend the Maturity, (ii) the new Stated Maturity, (iii) the interest rate
applicable to the Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of
such Security shall be extended automatically and, except as modified by the Extension Notice and
as described in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
34
Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of
such Security, the Company may, at its option, revoke the interest rate provided for in the
Extension Notice and establish a higher interest rate for the Extension Period by causing the
Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate
to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to
which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will have the option to elect
repayment of such Security by the Company on the Original Stated Maturity at a price equal to the
principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity thereof, the Holder must follow
the procedures set forth in Article Thirteen for repayment at the option of Holders, except that
the period for delivery or notification to the Trustee shall be at least 25 but not more than 35
days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security
for repayment pursuant to an Extension Notice, the Holder may, by written notice to the Trustee,
revoke such tender for repayment until the close of business on the tenth day before the Original
Stated Maturity.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary Guarantors or the
Trustee may treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and (subject to the record date provisions of Section
104) for all other purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Subsidiary Guarantors, the Trustee nor any agent of the Company, the Subsidiary
Guarantors or the Trustee shall be affected by notice to the contrary.
The Company, the Subsidiary Guarantors and the Trustee may treat the Depositary as the sole
and exclusive owner of a Global Security for the purposes of payment of the principal of or
interest on the Securities, giving any notice permitted or required to be given to Holders
registering the transfer of Securities, obtaining any consent or other action to be taken by
Holders and for all other purposes whatsoever; and neither the Company nor the Subsidiary
Guarantors or the Trustee shall be affected by any notice to the contrary. Neither the Company,
the Subsidiary Guarantors nor the Trustee shall have any responsibility or obligation to any
participant in the Depositary, any Person claiming a beneficial ownership interest in the
Securities under or through the Depositary or any such participant, or any other Person which is
not shown on the Security Register as being a Holder, with respect to either the Securities, the
accuracy of any records maintained by the Depositary or any such participant, the payment by the
Depositary or any such participant of any amount in respect of the principal of or interest on the
Securities, any notice which is permitted or required to be given to Holders under the Indenture,
any consent given or other action taken by the Depositary as Holder, or any selection by the
Depositary of any participant or other Person to receive payment of principal, interest or
redemption or purchase price of the Securities.
35
SECTION 310. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section 310, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be treated in
accordance with its document retention policies.
SECTION 311. Computation of Interest; Usury Not Intended.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months and interest on the Securities of each series for any partial period shall be
computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest (or amounts deemed to be interest under applicable law) payable or paid
on any Security shall be limited to an amount which shall not exceed the maximum nonusurious rate
of interest allowed by the applicable laws of the State of New York, or any applicable law of the
United States permitting a higher maximum nonusurious rate that preempts such applicable New York
law, which could lawfully be contracted for, taken, reserved, charged or received (the “Maximum
Interest Rate”). If, as a result of any circumstances whatsoever, the Company or any other Person
is deemed to have paid interest (or amounts deemed to be interest under applicable law) or any
Holder of a Security is deemed to have contracted for, taken, reserved, charged or received
interest (or amounts deemed to be interest under applicable law), in excess of the Maximum Interest
Rate, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of validity,
and if under any such circumstance, the Trustee, acting on behalf of the Holders, or any Holder
shall ever receive interest or anything that might be deemed interest under applicable law that
would exceed the Maximum Interest Rate, such amount that would be excessive interest shall be
applied to the reduction of the principal amount owing on the applicable Security or Securities and
not to the payment of interest, or if such excessive interest exceeds the unpaid principal balance
of any such Security or Securities, such excess shall be refunded to the Company; provided that the
Company and not the Trustee shall be responsible for collecting any such refund from the Holders.
In addition, for purposes of determining whether payments in respect of any Security are usurious,
all sums paid or agreed to be paid with respect to such Security for the use, forbearance or
detention of money shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such Security.
SECTION 312. CUSIP or ISIN Numbers.
36
The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption 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 in writing of any change in
“CUSIP” or “ISIN” numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request 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 as otherwise provided in this Section 401), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when
| (1) | either |
| (A) | all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or |
| (B) | all such Securities not theretofore delivered to the Trustee for cancellation |
| (i) | have become due and payable, or | ||
| (ii) | will become due and payable at their Stated Maturity within one year of the date of deposit, or | ||
| (iii) | 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, and the Company or, if applicable, a Subsidiary Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due |
37
| and payable) or to the Stated Maturity or Redemption Date, as the case may be; |
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company and the Subsidiary Guarantors; and
(3) 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 607 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section 401, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 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 any premium and interest for whose payment
such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
REMEDIES
SECTION 501. Events of Default.
“Event of Default”, wherever used herein with respect to the Securities of any series, means
any one of the following events (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that series
at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series, and continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Company or, if the Subsidiary Guarantors have issued Subsidiary Guarantees with
respect to the Securities of such series, any Subsidiary Guarantor in this Indenture with respect
to a Security of that series (other than a covenant or warranty a default in the
38
performance of which or the breach of which is elsewhere in this Section 501 specifically
dealt with or which has expressly been included in this Indenture solely for the benefit of series
of Securities other than that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, or via overnight delivery
service, to the Company and any Subsidiary Guarantor by the Trustee or to the Company, any
Subsidiary Guarantor and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” under this
Indenture; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company or, if the Subsidiary Guarantors have issued Subsidiary Guarantees
with respect to the Securities of such series, any Subsidiary Guarantor in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or any such Subsidiary Guarantor a
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any such Subsidiary
Guarantor under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or any such
Subsidiary Guarantor or of any substantial part of its or their property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company or, if the Subsidiary Guarantors have issued Subsidiary
Guarantees with respect to the Securities of such series, any Subsidiary Guarantor of a voluntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in respect of the Company or any
such Subsidiary Guarantor in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any such Subsidiary Guarantor or of any substantial part of its or their property, or
the making by it of an assignment of a substantial part of its property for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company or any such Subsidiary Guarantor in
furtherance of any such action; or
(7) in the event the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to
the Securities of such series, the Subsidiary Guarantee of any Subsidiary Guarantor is held by a
final non-appealable order or judgment of a court of competent jurisidiction to be unenforceable or
invalid or ceases for any reason to be in full force and effect (other than in accordance with the
terms of this Indenture) or any Subsidiary Guarantor or any Person acting on behalf of any
Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s obligations
39
under its Subsidiary Guarantee (other than by reason of a release of such Subsidiary Guarantor
from its Subsidiary Guarantee in accordance with the terms of this Indenture); or
(8) any other Event of Default provided with respect to Securities of that series,
provided, however, that no event described in Clause (4) above shall constitute an Event of
Default hereunder until a Responsible Officer has actual knowledge thereof or has received written
notice thereof as contemplated in Section 602.
Notwithstanding the foregoing provisions of this Section 501, if the principal or any premium
or interest on any Security is payable in a currency other than the currency of the United States
of America and such currency is not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the Company, the
Company will be entitled to satisfy its obligations to Holders of the Securities by making such
payment in the currency of the United States of America. Upon direction by the Company to the
Trustee of its intentions to pay an amount equal to the currency of the United States of America
equivalent of the amount payable in such other currency, the Trustee will, at cost to the Company,
determine the noon buying rate in The City of New York for cable transfers for such currency
(“Exchange Rate”), as such Exchange Rate is reported or otherwise made available by the Federal
Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on
the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of
this Section 501, any payment made under such circumstances in the currency of the United States of
America where the required payment is in a currency other than the currency of the United States of
America will not constitute an Event of Default under this Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(5) or Section
501(8) which is common to all Outstanding series of Securities) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series may
declare the principal amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and payable. If an Event
of Default under Section 501(5) occurs and is continuing, then the principal amount (or specified
amount) on all Outstanding Securities automatically shall become due and payable. If an Event of
Default under Section 501(8) which is common to all Outstanding series of Securities occurs and is
continuing, then in such case, the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as one class), by a
notice in writing to the Company (and to the Trustee if given by Holders) may declare the principal
amount (or, if any Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified by the terms thereof) of all the Securities then Outstanding to be due
and payable immediately, and
40
upon any such declaration such principal amount (or specified amount) shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article Five, the Event of Default giving rise to such
declaration of acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have been rescinded and
annulled, if:
(1) the Company or, if applicable, any Subsidiary Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become
due otherwise than by such declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days,
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment, when and as due by the terms
of any Security and such default continues for a period of 30 days,
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and any
premium and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the
41
rate or rates prescribed therefor in such Securities, and, in addition thereto, all amounts owing
the Trustee, its agents and counsel under Section 607.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any Subsidiary Guarantor (or any
other obligor upon the Securities), its or their property or its or their creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it and any predecessor
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or any Subsidiary Guarantee 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; provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other
similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or any Subsidiary
Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of all amounts owing the Trustee and
any predecessor Trustee under Section 607, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of
Securities pursuant to this Article Five shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money or property on account
42
of principal or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and
interest on such series of Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the amounts
due and payable on such series of Securities for principal and any premium and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver,
assignee, trustee, liquidator or sequestrator (or other similar official), or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of security or
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
43
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or repayment, on the Redemption Date or
Repayment Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Subsidiary Guarantors, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article Five or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series shall 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 Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
44
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the right to decline to
follow such direction if a Responsible Officer or Officers of the Trustee shall, in good faith,
determine that the proceeding so directed would involve the Trustee in personal liability or would
otherwise be contrary to applicable law.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and such court may in its discretion assess reasonable
costs including reasonable attorneys’ fees and expenses, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; provided that the provisions of this Section 514 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder or group of Holders holding in the aggregate
more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or interest on any Security, on or
after the respective due dates expressed in such Security.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and each of the Company and the Subsidiary Guarantors (to the extent that it may
45
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section
602, the term “default” means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
The Trustee shall not be required to take notice or be deemed to have notice or knowledge of
any Event of Default with respect to the Securities of a series, except an Event of Default under
Section 501(1), Section 501(2) or Section 501(3) hereof (provided, that the Trustee is the
principal Paying Agent with respect to the Securities of such series), unless a Responsible Officer
shall have received written notice of such Event of Default in accordance with Section 105 from the
Company, any Subsidiary or the Holder of any Security, which notice states that the event referred
to therein constitutes an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
46
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers’ Certificate;
(4) the Trustee may consult with counsel, and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(8) the Trustee is not required to give any bond or surety with respect to the performance of
its duties or the exercise of its powers under this Indenture;
(9) in the event the Trustee receives inconsistent or conflicting requests and indemnity from
two or more groups of Holders of Securities of a series, each representing less than a majority in
aggregate principal amount of the Securities of such series Outstanding, the Trustee, in its sole
discretion, may determine what action, if any, shall be taken;
(10) the Trustee’s immunities and protections from liability and its right to indemnification
in connection with the performance of its duties under this Indenture shall extend to the Trustee’s
officers, directors, agents and employees. Such immunities and protections and right to
indemnification, together with the Trustee’s right to compensation, shall survive the Trustee’s
resignation or removal and the satisfaction and discharge of this Indenture;
47
(11) except for information provided by the Trustee concerning the Trustee, the Trustee shall
have no responsibility for any information in any offering memorandum or other disclosure material
distributed with respect to the Securities, and the Trustee shall have no responsibility for
compliance with any state or federal securities laws in connection with the Securities;
(12) the Trustee shall not be liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of action; and
(13) the Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused by, directly or
indirectly, forces beyond its control, including without limitation strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the notations of Subsidiary
Guarantees, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company or the Subsidiary Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities or the
Subsidiary Guarantees. Neither the Trustee nor any Authenticating Agent shall be accountable for
the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or any Subsidiary Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company and any Subsidiary Guarantor with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or any Subsidiary Guarantor,
as the case may be.
SECTION 607. Compensation and Reimbursement.
The Company and each Subsidiary Guarantor jointly and severally agree:
48
(1) to pay to the Trustee from time to time such compensation for all services rendered by it
hereunder in such amounts as the Company and the Trustee shall agree in writing from time to time
(which compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee (which for purposes of this Section 607(3) shall include its
officers, directors, employees and agents) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, willful misconduct or bad faith on its part,
arising out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder, except those
attributable to its negligence, willful misconduct or bad faith.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity
under this Section 607. The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made without its consent.
As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities.
Without prejudice to any other rights available to the Trustee under applicable law, in the
event the Trustee incurs expenses or renders services in any proceedings which result from an Event
of Default under Section 501(5) or (6), or from any default which, with the passage of time, would
become such Event of Default, the expenses so incurred and compensation for services so rendered
are intended to constitute expenses of administration under the United States Bankruptcy Code or
equivalent law.
In no event shall the Trustee be liable for any indirect, special, punitive or consequential
loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if it has
been advised of the likelihood of such loss or damage and regardless of the form of action.
In no event shall the Trustee be liable for any failure or delay in the performance of its
obligations hereunder because of circumstances beyond its control, including, but not limited to,
acts of God, floor, war (whether declared or undeclared), terrorism, strikes, work stoppages, civil
or military disturbances, nuclear or natural catastrophes, fire, riot, embargo, loss or
malfunctions of utilities, communications or computer (software or hardware) services, government
action,
49
including laws, ordinances, regulations, governmental action or the like which delay, restrict
or prohibit the providing of the services contemplated by the Indenture.
The provisions of this Section 607 shall survive the termination of this Indenture or the
earlier resignation or removal of the Trustee.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to any other indenture of the Company or Subsidiary Guarantors or
Securities of any series by virtue of being a trustee under this Indenture with respect to any
particular series of Securities.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section 609 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section 609, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article Six.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article Six shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
50
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the Company, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to all Securities, or (B)
subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company or successor Trustee shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series to all Holders of Securities of such series in the
manner provided in Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
51
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company,
the Subsidiary Guarantors and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and 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; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
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 Subsidiary Guarantors, 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) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed 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 to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustee’s co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and 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; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Subsidiary Guarantors shall
execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article Six.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
52
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated, and in case any Securities
shall not have been authenticated, any such successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee or in the name of such successor Trustee,
and in all cases the certificate of authentication shall have the full force which it is provided
anywhere in the Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 613. Preferential Collection of Claims Against Company and Subsidiary Guarantors.
If and when the Trustee shall be or become a creditor of the Company or any Subsidiary
Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against the Company or
such Subsidiary Guarantor (or any such other obligor). For purposes of Section 311(b)(4) and (6) of
the Trust Indenture Act:
(a) “cash transaction” means any transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks and payable upon demand; and
(b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company or any Subsidiary Guarantor (or any such
obligor) for the purpose of financing the purchase, processing, manufacturing, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security;
provided the security is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company or such Subsidiary Guarantor (or any such obligor) arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
53
authentication, such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section 614,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section 614, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 614, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
give notice of such appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under
the provisions of this Section 614.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 614.
If an appointment with respect to one or more series is made pursuant to this Section 614, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
54
| Dated: | The Bank of New York Mellon Trust Company, N.A., As Trustee |
|||
| By: | ||||
| As Authenticating Agent | ||||
| By: | ||||
| Authorized Officer | ||||
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than January 15 and July 15 in each year, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each
series as of the preceding January 1 or July 1 as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be Security Registrar for Securities of
a series, no such list need be furnished with respect to such series of Securities.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, the Subsidiary Guarantors, nor the Trustee nor any agent of
either of them shall be held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
55
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days
after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as
of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company and Subsidiary Guarantors.
The Company and each of the Subsidiary Guarantors shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided in the Trust Indenture Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act shall be filed with the Trustee within 15 days after the same is filed with the Commission.
Delivery of any reports, information and documents by the Company or the Subsidiary Guarantors
to the Trustee pursuant to the provisions of this Section 704 is for informational purposes only
and the Trustee’s receipt of same shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s
compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership, trust or other entity, and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;
56
(2) immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have happened
and be continuing; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article Eight and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 802. Subsidiary Guarantors May Consolidate, Etc., Only on Certain Terms.
Except in a transaction resulting in the release of a Subsidiary Guarantor in accordance with
the terms of this Indenture, Subsidiary Guarantors shall not, and the Company shall not permit any
Subsidiary Guarantor to, in a single or series of related transactions, consolidate or merge with
or into any Person (other than the Company or another Subsidiary Guarantor) or permit any Person
(other than another Subsidiary Guarantor) to consolidate or merge with or into such Subsidiary
Guarantor or, directly or indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its assets unless:
(1) in case such Subsidiary Guarantor shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which such Subsidiary Guarantor is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and assets of the
Subsidiary Guarantor substantially as an entirety shall be a corporation, partnership, trust or
other entity, and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the performance or observance
of every covenant of this Indenture on the part of the Subsidiary Guarantor to be performed or
observed;
(2) the Subsidiary Guarantor has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article Eight and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 803. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance, transfer or lease 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 Person had been named as the
Company herein; and in the event of any such conveyance or transfer (but not in the case of a
lease) the Company shall be discharged from all obligations and covenants under the Indenture and
the Securities and may be dissolved and liquidated.
57
(b) Upon any consolidation of a Subsidiary Guarantor with, or merger of a Subsidiary
Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets
of such Subsidiary Guarantor substantially as an entirety in accordance with Section 802, the
successor Person formed by such consolidation or into which such Subsidiary Guarantor is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, such Subsidiary Guarantor under this Indenture with the same
effect as if such successor Person had been named as a Subsidiary Guarantor herein; and in the
event of any such conveyance or transfer (but not in the case of a lease) such Subsidiary Guarantor
shall be discharged from all obligations and covenants under the Indenture and the Securities and
may be dissolved and liquidated.
(c) Any such successor Person referred to in Section 803(a) or 803(b) may cause to be signed,
and may issue either in its own name or in the name of the Company and any Subsidiary Guarantor,
any or all of the Securities issuable hereunder which theretofore shall not have been signed by the
Company and, if applicable, the Subsidiary Guarantors in respect of the notations of Subsidiary
Guarantees thereon, and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company or the Subsidiary Guarantor, as the case may be, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and delivered by the officers
of the Company and if applicable, the Subsidiary Guarantors in respect of the notations of
Subsidiary Guarantees thereon to the Trustee for authentication pursuant to such provisions and any
Securities which such successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such changes in
phraseology and form may be made in the Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, the
Subsidiary Guarantors, when authorized by their respective Board Resolutions, and the Trustee, at
any time and from time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Subsidiary Guarantor,
or successive successions, and the assumption by the successor Person of the covenants, agreements
and obligations of the Company or any Subsidiary Guarantor pursuant to Article Eight; or
58
(2) to add to the covenants of the Company or the Subsidiary Guarantors for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company of
the Subsidiary Guarantors; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events of Default are expressly being
included solely for the benefit of such series), provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the Holders of a majority in
aggregate principal amount of that or those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) 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 if such addition, change or elimination shall
adversely affect the interests of Holders of Securities of any series in any material respect, such
addition, change or elimination shall become effective with respect to such series only when no
such Security of such series remains Outstanding; or
(6) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or to
surrender any right or power herein conferred upon the Company; or
(7) to secure the Securities or one or more series of Securities; or
(8) to establish the forms or terms of Securities of any series as permitted by Sections 201
and 301; or
(9) to provide for uncertificated securities in addition to certificated securities; or
(10) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or
(11) to cure any ambiguity, or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
59
(12) to make any other provisions with respect to matters or questions arising under this
Indenture, provided that such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(13) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant
to Sections 401, 1502 and 1503; or
(14) to comply with the rules or regulations of any securities exchange or automated quotation
system on which any of the Securities may be listed or traded; or
(15) to add to, change or eliminate any of the provisions of this Indenture as shall be
necessary or desirable in accordance with any amendments to the Trust Indenture Act; or
(16) to provide for the payment by the Company of additional amounts in respect of taxes
imposed on certain Holders and for the treatment of such additional amounts as interest and for all
matters incidental thereto; or
(17) to add new Subsidiary Guarantors.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture (treated as one
class), by Act of said Holders delivered to the Company, the Subsidiary Guarantors and the Trustee,
the Company, when authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by a
their respective Board Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) except to the extent permitted by Section 307(b) or Section 308 or otherwise specified in
the form or terms of the Securities of any series as permitted by Sections 201 and 301 with respect
to extending the Stated Maturity of any Security of such series, change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date), or release any
Subsidiary Guarantee other than as provided in this Indenture, or
60
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 902, Section 513 or Section 1006, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to “the Trustee” and concomitant changes in this
Section 902 and Section 1006, or the deletion of this proviso, in accordance with the requirements
of Sections 611 and 901(9), or
(4) if the Securities of any series are convertible or exchangeable into any other securities
or property of the Company, make any change that adversely affects in any material respect the
right to convert or exchange any Security of such series (except as permitted by Section 901) or
decrease the conversion or exchange rate or increase the conversion price of any such Security of
such series, unless such decrease or increase is permitted by the terms of such Security, or
(5) if the Securities of any series are secured, change the terms and conditions pursuant to
which the Securities of such series are secured in a manner adverse to the Holders of the secured
Securities of such series in any material respect.
A supplemental indenture which 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.
It shall not be necessary for any Act of Holders under this Section 902 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.
61
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Nine may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and, if applicable, the notations of Subsidiary Guarantees may be endorsed
thereon, and such new Securities may be authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture. Principal, premium, if
any, and interest shall be considered paid on the date due if the Trustee or Paying Agent, if other
than the Company, holds on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premiums, if any, and interest then
due. The Company will be responsible for making calculations called for under the Securities,
including but not limited to determination of Redemption Price, premium, if any, and other amounts
payable on the Notes, if any. The Company will make calculations in good faith and, absent
manifest error, its calculations will be final and binding on the Holders of the Securities. The
Company will provide a schedule of its calculations to the Trustee when applicable, and the Trustee
is entitled to rely conclusively on the accuracy of the Company’s calculations without independent
verification.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and
62
where notices and demands to or upon the Company or any Subsidiary Guarantor in respect of the
Securities of that series or any Subsidiary Guarantee and this Indenture may be served. The Company
initially appoints the Trustee, acting through its Corporate Trust Office, as its agent for said
purpose. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company and the Subsidiary Guarantors hereby appoint the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series 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 each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company or any Subsidiary Guarantor shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the principal of or any
premium or interest on any of the Securities of that series, segregate to the extent required by
law and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section 1003, that such Paying Agent will (1) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during
the continuance of any default by the Company or the Subsidiary Guarantors (or any other obligor
upon the Securities of that series) in the making of any payment in respect of the Securities of
that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent,
63
such sums to be held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for one year after such principal, premium or interest has become due and
payable may be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 1004. Statement by Officers as to Default.
The Company and the Subsidiary Guarantors will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate,
one of the signers of which shall be the principal executive, principal accounting or principal
financial officer of the Company or any Subsidiary Guarantor, stating whether or not to the best
knowledge of the signers thereof, the Company or any Subsidiary Guarantor is in default in the
performance and observance of any of the terms, provisions, covenants and conditions of this
Indenture (without regard to any period of grace or requirement of notice provided hereunder) and,
if the Company or any Subsidiary Guarantor shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight and the Company’s ability to convert into a limited liability
company, limited partnership or limited liability partnership under applicable law, the Company
will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence. On and after any conversion of the Company into a limited liability company,
limited partnership or limited liability partnership under applicable law, the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect its limited
liability company, limited partnership or limited liability partnership existence, as applicable.
SECTION 1006. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company and the Subsidiary Guarantors may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(21), 901(2) or 901(7) for the benefit of the Holders of
such series or in Section 1005, if the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
64
the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Company Order or
in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company, the Company shall, not less than 45 nor more than 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the principal amount of any
Security of such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
65
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed. If the Company shall so direct, Securities registered in the name of the
Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected
for redemption.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
With respect to Securities of each series to be redeemed, each notice of redemption shall
identify the Securities to be redeemed (including CUSIP or ISIN numbers, if applicable) and shall
state:
(1) the Redemption Date,
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
(3) if less than all the Outstanding Securities of any series consisting of more than a single
Security are to be redeemed, the identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be redeemed and, if less than
all the Outstanding Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date, the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where each such Security is to be surrendered for payment of the
Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable. The notice if 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, a failure to give such notice by mail or any defect in the notice
66
to the Holder of any Security designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security.
SECTION 1105. Deposit of Redemption Price.
On or before the Redemption Date specified in the notice of redemption given as provided in
Section 1104, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall
be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal amount (together with interest, if any, thereon accrued to the Redemption
Date) and any premium shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and if
applicable, the Subsidiary Guarantors shall execute the notations of Subsidiary Guarantees endorsed
thereon, and the Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like tenor, of any
authorized denomination (which shall not be less than the minimum authorized denomination) as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SINKING FUNDS
67
SECTION 1201. Applicability of Article.
The provisions of this Article Twelve shall be applicable to any sinking fund for the
retirement of Securities of any series except as otherwise specified as contemplated by Section 301
for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities of
any series is herein referred to as a “mandatory sinking fund payment”, and any sinking fund
payment in excess of such minimum amount which is permitted to be made by the terms of such
Securities is herein referred to as an “optional sinking fund payment”. If provided for by the
terms of any Securities of any series, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and
stating the basis for any such credit and that such Securities have not previously been so credited
and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior
to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBSIDIARY GUARANTEES
SUBSIDIARY GUARANTEES
68
SECTION 1301. Applicability of Article.
Unless the Company elects to issue any series of Securities without the benefit of the
Subsidiary Guarantees, which election shall be evidenced in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities pursuant to Section 301, the
provisions of this Article shall be applicable to each series of Securities except as otherwise
specified in or pursuant to the Board Resolution or supplemental indenture establishing such series
pursuant to Section 301.
SECTION 1302. Subsidiary Guarantees.
Subject to Section 1301, each Subsidiary Guarantor hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee,
the due and punctual payment of the principal of (and premium, if any) and interest on such
Security when and as the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, in accordance with the terms of
such Security and of this Indenture, and each Subsidiary Guarantor similarly guarantees to the
Trustee the payment of all amounts owing to the Trustee in accordance with the terms of this
Indenture. In case of the failure of the Company punctually to make any such payment, each
Subsidiary Guarantor hereby, jointly and severally, agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, offer to purchase or otherwise, and as if such payment were made
by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be absolute, unconditional, irrespective of, and shall be unaffected by, the
validity, regularity or enforceability of such Security or this Indenture, the absence of any
action to enforce the same or any release, amendment, waiver or indulgence granted to the Company
or any other guarantor or any consent to departure from any requirement of any other guarantee of
all or any of the Securities of such series or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however,
that, notwithstanding the foregoing, no such release, amendment, waiver or indulgence shall,
without the consent of such Subsidiary Guarantor, increase the principal amount of such Security,
or increase the interest rate thereon, or alter the Stated Maturity thereof. Each of the Subsidiary
Guarantors hereby waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security
interest in or other lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged in
respect of such Security except by complete performance of the obligations contained in such
Security and in such Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to accelerate the maturity of
the Securities of a series, to collect interest on the Securities of a series, or to enforce or
exercise any other right or remedy with respect to the
69
Securities of a series, such Subsidiary Guarantor agrees to pay to the Trustee for the account
of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of the Securities
upon which its Subsidiary Guarantee is endorsed against the Company in respect of any amounts paid
by such Subsidiary Guarantor on account of such Security pursuant to the provisions of its
Subsidiary Guarantee or this Indenture; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantor that makes or is required to make any payment in respect of its
Subsidiary Guarantee shall be entitled to seek contribution from the other Subsidiary Guarantors to
the extent permitted by applicable law; provided, however, that no Subsidiary Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
contribution until the principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation or reorganization, should
the Company become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any part of the Company’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Securities of a series, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of the
Securities, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or any part thereof,
is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
SECTION 1303. Execution and Delivery of Notations of Subsidiary Guarantees.
To further evidence the Subsidiary Guarantee set forth in Section 1302, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Subsidiary Guarantee, substantially in
the form set forth in Section 204, shall be endorsed on each Security entitled to the benefits of
the Subsidiary Guarantee authenticated and delivered by the Trustee and executed by either manual
or facsimile signature of an officer of such Subsidiary Guarantor, or in the case of a Subsidiary
Guarantor that is a limited partnership, an officer of the general partner of each Subsidiary
Guarantor. Each of the Subsidiary Guarantors hereby agrees that the Subsidiary Guarantee set forth
in Section 1302 shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation relating to the Subsidiary Guarantee. If any officer of the Subsidiary
Guarantor, or in the case of a Subsidiary Guarantor that is a limited partnership, any officer of
the general partner of the Subsidiary Guarantor, whose signature is on this Indenture or a Security
no longer holds that office at the time the Trustee authenticates such
70
Security or at any time thereafter, the Subsidiary Guarantee of such Security shall be valid
nevertheless. The delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on
behalf of the Subsidiary Guarantors.
SECTION 1304. Release of Subsidiary Guarantors.
Unless otherwise specified pursuant to Section 301 with respect to a series of Securities,
each Subsidiary Guarantee will remain in effect with respect to the respective Subsidiary Guarantor
until the entire principal of, premium, if any, and interest on the Securities to which such
Subsidiary Guarantee relates shall have been paid in full or otherwise satisfied and discharged in
accordance with the provisions of such Securities and this Indenture and all amounts owing to the
Trustee hereunder have been paid; provided, however, that if (i) such Subsidiary Guarantor ceases
to be a Subsidiary in compliance with the applicable provisions of this Indenture, (ii) either
Defeasance or Covenant Defeasance occurs with respect to such Securities pursuant to Article
Fifteen or (iii) all or substantially all of the assets of such Subsidiary Guarantor or all of the
Capital Stock of such Subsidiary Guarantor is sold (including by sale, merger, consolidation or
otherwise) by the Company or any Subsidiary in a transaction complying with the requirements of
this Indenture, then, in each case of (i), (ii) or (iii), upon delivery by the Company of an
Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent herein
provided for relating to the release of such Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee and this Article Thirteen have been complied with, such Subsidiary Guarantor
shall be released and discharged of its obligations under its Subsidiary Guarantee and under this
Article Thirteen without any action on the part of the Trustee or any Holder, and the Trustee shall
execute any documents reasonably required in order to acknowledge the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee endorsed on the Securities of such
series and under this Article Thirteen.
SECTION 1305. Limitation on Liability.
Any term or provision of this Indenture to the contrary notwithstanding, the maximum amount of
the Subsidiary Guarantee of any Subsidiary Guarantor shall not exceed the maximum amount that can
be hereby guaranteed by such Subsidiary Guarantor without rendering such Subsidiary Guarantee
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF THE HOLDERS
REPAYMENT AT THE OPTION OF THE HOLDERS
SECTION 1401. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in accordance with this
Article Fourteen.
SECTION 1402. Repayment of Securities.
71
Securities of any series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof and any premium thereon, together with interest thereon accrued to
the Repayment Date specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the principal (or, if so provided by the terms
of the Securities of any series, a percentage of the principal) of, the premium, if any, and
(except if the Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1403. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders thereof will
contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the
option of the Holder, any Security so providing for such repayment, with the “Option to Elect
Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s
attorney duly authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor
later than 30 days prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of the Holder thereof
and as provided in Sections 307(b) and 308, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1404. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in this Article Fourteen and as provided by or pursuant to the
terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid
shall become due and payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall default in the payment of
such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for repayment in accordance with such
provisions, the principal amount of such Security so to be repaid shall be paid by the Company,
together with accrued interest and/or premium, if any, to (but excluding) the Repayment Date;
provided, however, that, unless otherwise specified as contemplated by Section 301, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default
72
in the payment thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) and any premium shall, until paid, bear interest from the Repayment Date at the
rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1405. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1502 or Section 1503 applied
to any Securities or any series of Securities, as the case may be, (unless designated pursuant to
Section 301 as not being defeasible pursuant to such Section 1502 or 1503), in accordance with any
applicable requirements provided pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article Fifteen. Any such election shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1502. Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section 1502 applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, and each Subsidiary Guarantor shall be deemed to be
discharged from its obligations with respect to such Securities as provided in this Section 1502 on
and after the date the conditions set forth in Section 1504 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that the Company and any Subsidiary
Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such
Securities and Subsidiary Guarantees and to have satisfied all its other obligations under such
Securities and Subsidiary Guarantees and this Indenture insofar as such Securities and Subsidiary
Guarantees are concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely
from the trust fund described in Section 1504 and as more fully set
73
forth in such Section 1506, payments in respect of the principal of and any premium and
interest on such Securities when payments are due, (2) the Company’s and any Subsidiary Guarantor’s
obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article
Fifteen. Subject to compliance with this Article Fifteen, the Company may exercise its option (if
any) to have this Section 1502 applied to any Securities notwithstanding the prior exercise of its
option (if any) to have Section 1503 applied to such Securities.
SECTION 1503. Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section 1503 applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under any covenants provided pursuant to Section 301(21), 704 (to the extent of any
covenants in addition to the requirements of the Trust Indenture Act), 901(2) or 901(7) for the
benefit of the Holders of such Securities and (2) the occurrence of any event specified in Sections
501(4) (with respect to any such covenants provided pursuant to Section 301(21), 704 (to the extent
of any covenants in addition to the requirements of the Trust Indenture Act), 901(2) or 901(7)),
shall be deemed not to be or result in an Event of Default and (3) the provisions of Article
Thirteen shall cease to be effective, in each case with respect to such Securities and Subsidiary
Guarantees, in each case with respect to such Securities as provided in this Section 1503 on and
after the date the conditions set forth in Section 1504 are satisfied (hereinafter called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company and the Subsidiary Guarantors, as applicable, may omit to comply with and
shall have no liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Section 501(4)) or Article Thirteen,
whether directly or indirectly by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any other provision herein
or in any other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1502 or Section 1503 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article Fifteen applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each case 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 and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal
of and any premium and interest on such Securities on the respective
74
Stated Maturities or upon redemption, in accordance with the terms of this Indenture and such
Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a
direct obligation 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) an obligation 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, which, in either case (i) or (ii), is not callable or redeemable at the option
of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1502 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change
in the applicable federal income tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or
loss for federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit, Defeasance
and discharge were not to occur.
(3) In the event of an election to have Section 1503 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or loss for
federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(4) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in Sections
501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
75
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company or any
Subsidiary is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under the Investment Company Act or exempt from registration
thereunder.
(8) The Company shall have delivered to the Trustee an agreement whereby the Company
irrevocably agrees to forfeit its right, if any, (A) to reset the interest rate of such Securities
pursuant to Section 307(b) and (B) to extend the Stated Maturity of such Securities pursuant to
Section 308.
(9) If the Securities are to be redeemed prior to Stated Maturity (other than from mandatory
sinking fund payments or analogous payments), notice of such redemption shall have been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made.
(10) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1505. Acknowledgment of Discharge By Trustee.
Subject to Section 1507 below and after the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in
Section 1504 relating to the Defeasance or Covenant Defeasance, as the case may be, have been
complied with, the Trustee upon request of the Company shall acknowledge in writing the Defeasance
or the Covenant Defeasance, as the case may be.
SECTION 1506. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section 1506, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 1504 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section
76
1504 or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1504 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
SECTION 1507. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article Fifteen with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Fifteen with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1506 with
respect to such Securities in accordance with this Article Fifteen; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such Security following
such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of
the Holders of such Securities to receive such payment from the money so held in trust.
SECTION 1508. Qualifying Trustee.
Any trustee appointed pursuant to Section 1504 for the purpose of holding trust funds
deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the
Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein
to the related Defeasance or Covenant Defeasance have been complied with. In no event shall the
Trustee be liable for any acts or omissions of said trustee.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1601. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, director or employee, as such, past, present or future, of the
Company, any Subsidiary, any Subsidiary Guarantor or any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly understood that
77
this Indenture and the obligations issued hereunder are solely corporate obligations of the
Company, and that no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers, directors, or employees, as such, of the Company,
any Subsidiary, any Subsidiary Guarantor or any successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities or implied
therefrom; and that any and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer, director or employee, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issue of such Securities.
78
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and, in
the case of the Company, attested, all as of the day and year first above written.
| ISSUER: LEAR CORPORATION |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | ||||
| SUBSIDIARY GUARANTORS: Lear Argentine Holdings Corporation #2 Lear Automotive Dearborn, Inc. Lear Corporation (Germany) Ltd. Lear Corporation EEDS and Interiors Lear Corporation Global Development, Inc. Lear European Operations Corporation Lear Mexican Holdings Corporation Lear Mexican Seating Corporation Lear Operations Corporation Lear Seating Holdings Corp. #50 Lear South American Holdings Corporation Renosol Seating, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President | |||
| Lear #50 Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear South American Holdings Corporation, Sole Member of Lear #50 Holdings, LLC | |||
| Lear Automotive Manufacturing, LLC Lear Investments Company, L.L.C. |
||||
| By: | /s/ Shari L. Burgess | |||
| Name: | Shari L. Burgess | |||
| Title: | Vice President and Treasurer | |||
| Lear EEDS Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Argentine Holdings Corporation #2, Sole Member of Lear EEDS Holdings, LLC | |||
| Lear Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Argentine Holdings Corporation #2, Sole Member of Lear Holdings, LLC | |||
| Lear Mexican Holdings, L.L.C. |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Mexican Holdings Corporation, Sole Member of Lear Mexican Holdings, L.L.C. | |||
| Lear Trim L.P. |
||||
| By: | /s/ William P. McLaughlin | |||
| Name: | William P. McLaughlin | |||
| Title: | Vice President of Lear Mexican Holdings Corporation, General Partner of Lear Trim L.P. | |||
| TRUSTEE: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||||
| By: | /s/ Lawrence M. Kusch | |||
| Name: | Lawrence M. Kusch | |||
| Title: | Vice President | |||
79
SCHEDULE I
SUBSIDIARY GUARANTORS
| SUBSIDIARY | STATE OF ORGANIZATION |
|
Lear #50 Holdings, LLC
|
Delaware | |
Lear Argentine Holdings Corporation #2
|
Delaware | |
Lear Automotive Dearborn, Inc.
|
Delaware | |
Lear Automotive Manufacturing, LLC
|
Delaware | |
Lear Corporation (Germany) Ltd.
|
Delaware | |
Lear Corporation EEDS and Interiors
|
Delaware | |
Lear Corporation Global Development, Inc.
|
Delaware | |
Lear EEDS Holdings, LLC
|
Delaware | |
Lear European Operations Corporation
|
Delaware | |
Lear Holdings, LLC
|
Delaware | |
Lear Investments Company, L.L.C.
|
Delaware | |
Lear Mexican Holdings Corporation
|
Delaware | |
Lear Mexican Holdings, L.L.C.
|
Delaware | |
Lear Mexican Seating Corporation
|
Delaware | |
Lear Operations Corporation
|
Delaware | |
Lear Seating Holdings Corp. #50
|
Delaware | |
Lear South American Holdings Corporation
|
Delaware | |
Lear Trim L.P.
|
Delaware | |
Renosol Seating, LLC
|
Michigan |
80
Exhibit 4.2
EXECUTION COPY
LEAR CORPORATION,
as Issuer
as Issuer
THE SUBSIDIARY GUARANTORS PARTY HERETO, as Subsidiary Guarantors
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
as Trustee
7.875% SENIOR NOTES DUE 2018
8.125% SENIOR NOTES DUE 2020
FIRST SUPPLEMENTAL INDENTURE DATED AS OF
MARCH 26, 2010
TABLE OF CONTENTS
| Page | ||||
| ARTICLE 1 ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE | 1 | |||
SECTION 1.01. |
Establishment | 1 | ||
SECTION 1.02. |
Definitions | 2 | ||
SECTION 1.03. |
Other Definitions | 29 | ||
SECTION 1.04. |
Incorporation by Reference of Trust Indenture Act | 29 | ||
SECTION 1.05. |
Rules of Construction | 30 | ||
| ARTICLE 2 THE NOTES | 30 | |||
SECTION 2.01. |
Form and Dating | 30 | ||
SECTION 2.02. |
Execution and Authentication | 31 | ||
SECTION 2.03. |
Registrar and Paying Agent | 31 | ||
SECTION 2.04. |
Paying Agent to Hold Money in Trust | 32 | ||
SECTION 2.05. |
Holder Lists | 32 | ||
SECTION 2.06. |
Transfer and Exchange | 32 | ||
SECTION 2.07. |
Replacement Notes | 35 | ||
SECTION 2.08. |
Outstanding Notes | 35 | ||
SECTION 2.09. |
Treasury Notes | 36 | ||
SECTION 2.10. |
Temporary Notes | 36 | ||
SECTION 2.11. |
Cancellation | 36 | ||
SECTION 2.12. |
CUSIP or ISIN Numbers | 36 | ||
SECTION 2.13. |
Additional Notes | 36 | ||
| ARTICLE 3 REDEMPTION AND PREPAYMENT | 37 | |||
SECTION 3.01. |
Notices to Trustee | 37 | ||
SECTION 3.02. |
Selection of Notes to be Redeemed | 37 | ||
SECTION 3.03. |
Notice of Redemption | 38 | ||
SECTION 3.04. |
Effect of Notice Upon Redemption | 38 | ||
SECTION 3.05. |
Deposit of Redemption Price | 39 | ||
SECTION 3.06. |
Notes Redeemed in Part | 39 | ||
SECTION 3.07. |
Optional Redemption for the 2018 Notes | 39 | ||
SECTION 3.08. |
Optional Redemption for the 2020 Notes | 40 | ||
| Page | ||||
SECTION 3.09. |
Mandatory Redemption | 41 | ||
| ARTICLE 4 COVENANTS | 41 | |||
SECTION 4.01. |
Payment of Notes | 41 | ||
SECTION 4.02. |
Maintenance of Office or Agency | 41 | ||
SECTION 4.03. |
Reports | 42 | ||
SECTION 4.04. |
Compliance Certificate | 42 | ||
SECTION 4.05. |
Restricted Payments | 43 | ||
SECTION 4.06. |
Dividend and Other Payment Restrictions Affecting Subsidiaries | 46 | ||
SECTION 4.07. |
Limitation on Indebtedness | 47 | ||
SECTION 4.08. |
Limitation on Sales of Assets and Subsidiary Stock | 50 | ||
SECTION 4.09. |
Affiliate Transactions | 53 | ||
SECTION 4.10. |
Liens | 54 | ||
SECTION 4.11. |
Offer to Repurchase Upon Change of Control | 54 | ||
SECTION 4.12. |
Corporate Existence | 55 | ||
SECTION 4.13. |
Additional Subsidiary Guarantors | 55 | ||
SECTION 4.14. |
Limitation on Sale and Leaseback Transactions | 55 | ||
SECTION 4.15. |
Suspension of Covenants | 56 | ||
| ARTICLE 5 SUCCESSORS | 57 | |||
SECTION 5.01. |
Merger, Consolidation, or Sale of Assets | 57 | ||
SECTION 5.02. |
Successor Corporation Substituted | 58 | ||
| ARTICLE 6 DEFAULTS AND REMEDIES | 58 | |||
SECTION 6.01. |
Events of Default | 59 | ||
SECTION 6.02. |
Acceleration | 60 | ||
SECTION 6.03. |
Other Remedies | 61 | ||
SECTION 6.04. |
Waiver of Past Defaults | 61 | ||
SECTION 6.05. |
Control by Majority | 61 | ||
SECTION 6.06. |
Limitation on Suits | 61 | ||
SECTION 6.07. |
Rights of Holders of Notes to Receive Payment | 62 | ||
SECTION 6.08. |
Collection Suit by Trustee. | 62 | ||
SECTION 6.09. |
Trustee May File Proofs of Claim | 62 | ||
| Page | ||||
SECTION 6.10. |
Priorities | 63 | ||
SECTION 6.11. |
Undertaking for Costs | 63 | ||
| ARTICLE 7 TRUSTEE | 63 | |||
SECTION 7.01. |
Duties of Trustee | 63 | ||
SECTION 7.02. |
Rights of the Trustee | 64 | ||
SECTION 7.03. |
Individual Rights of Trustee | 66 | ||
SECTION 7.04. |
Trustee’s Disclaimer | 66 | ||
SECTION 7.05. |
Notice of Defaults | 66 | ||
SECTION 7.06. |
Reports by Trustee to Holder | 66 | ||
SECTION 7.07. |
Compensation and Indemnity | 67 | ||
SECTION 7.08. |
Replacement of Trustee | 68 | ||
SECTION 7.09. |
Successor Trustee by Merger, etc | 68 | ||
SECTION 7.10. |
Eligibility; Disqualification | 69 | ||
SECTION 7.11. |
Preferential Collection of Claims Against Company | 69 | ||
| ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE | 69 | |||
SECTION 8.01. |
Option to Effect Legal Defeasance or Covenant Defeasance | 69 | ||
SECTION 8.02. |
Legal Defeasance and Discharge | 69 | ||
SECTION 8.03. |
Covenant Defeasance | 69 | ||
SECTION 8.04. |
Conditions to Legal or Covenant Defeasance | 70 | ||
SECTION 8.05. |
Deposited Money and U.S. Government Securities to Be Held in Trust; | |||
| Other Miscellaneous Provisions | 71 | |||
SECTION 8.06. |
Satisfaction and Discharge | 72 | ||
SECTION 8.07. |
Repayment to Company | 72 | ||
SECTION 8.08. |
Reinstatement | 72 | ||
SECTION 8.09. |
Survival | 73 | ||
| ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER | 73 | |||
SECTION 9.01. |
Without Consent of Holder | 73 | ||
SECTION 9.02. |
With Consent of Holders of Notes | 74 | ||
SECTION 9.03. |
Compliance with Trust Indenture Act | 75 | ||
SECTION 9.04. |
Revocation and Effect of Consents | 75 | ||
| Page | ||||
SECTION 9.05. |
Trustee to Sign Amendments | 75 | ||
| ARTICLE 10 SUBSIDIARY GUARANTEES | 75 | |||
SECTION 10.01. |
Subsidiary Guarantees | 76 | ||
SECTION 10.02. |
Limitation on Liability | 77 | ||
SECTION 10.03. |
Successors and Assigns | 77 | ||
SECTION 10.04. |
No Waiver | 77 | ||
SECTION 10.05. |
Release of Subsidiary Guarantor | 77 | ||
SECTION 10.06. |
Contribution | 77 | ||
| ARTICLE 11 MISCELLANEOUS | 78 | |||
SECTION 11.01. |
Trust Indenture Act Controls | 78 | ||
SECTION 11.02. |
Notices | 78 | ||
SECTION 11.03. |
Communication by Holders of Notes with Other Holders of Notes | 79 | ||
SECTION 11.04. |
Certificate and Opinion as to Conditions Precedent | 79 | ||
SECTION 11.05. |
Statements Required in Certificate or Opinion | 79 | ||
SECTION 11.06. |
Rules by Trustee and Agents | 80 | ||
SECTION 11.07. |
No Personal Liability of Directors, Officers, Employees and Stockholders | 80 | ||
SECTION 11.08. |
Governing Law; Waiver of Jury Trial | 80 | ||
SECTION 11.09. |
No Adverse Interpretation of Other Agreements | 80 | ||
SECTION 11.10. |
Successors | 80 | ||
SECTION 11.11. |
Severability | 81 | ||
SECTION 11.12. |
Counterpart Originals | 81 | ||
SECTION 11.13. |
Table of Contents, Headings, etc. | 81 | ||
SECTION 11.14. |
Force Majeure | 81 | ||
LEAR CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF MARCH 26, 2010
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF MARCH 26, 2010
| Section of Trust Indenture Act of 1939 | Section(s) of Indenture | ||||
ss. 310 |
(a) (1) | 7.10 | |||
| (a) (2) | 7.10 | ||||
| (a) (3) | N.A. | ||||
| (a) (4) | N.A. | ||||
| (a) (5) | 7.10 | ||||
| (b) | 7.08, 7.10 | ||||
| (c) | N.A. | ||||
ss. 311 |
(a) | 7.11 | |||
| (b) | 7.11 | ||||
| (c) | N.A. | ||||
ss. 312 |
(a) | 2.05 | |||
| (b) | 2.05 | ||||
| (c) | 2.05 | ||||
ss. 313 |
(a) | 7.06 | |||
| (b)(1) | N.A. | ||||
| (b)(2) | 7.06, 7.07 | ||||
| (c) | 7.06 | ||||
| (d) | 7.06 | ||||
ss. 314 |
(a) | 4.03, 4.04 | |||
| (b) | N.A. | ||||
| (c) (1) | 13.04 | ||||
| (c) (2) | 13.04 | ||||
| (c) (3) | N.A. | ||||
| (d) | N.A. | ||||
| (e) | 13.05 | ||||
ss. 315 |
(a) | 7.01 | |||
| (b) | 7.05, 11.02 | ||||
| (c) | 7.01 | ||||
| (d) | 7.01 | ||||
| (e) | 6.11 | ||||
ss. 316 |
(a) (1) (A) | 6.05 | |||
| (a) (1) (B) | 6.04 | ||||
| (a) (2) | N.A. | ||||
| (a) (last sentence) | 6.11 | ||||
| (b) | 6.07 | ||||
ss. 317 |
(a) (1) | 6.08 | |||
| (a) (2) | 6.09 | ||||
| (b) | 2.04 | ||||
ss. 318 |
(a) | 13.01 | |||
| (b) | N.A. | ||||
| (c) | 13.01 | ||||
| Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
This FIRST SUPPLEMENTAL INDENTURE, dated as of March 26, 2010 (this “Supplemental
Indenture”), is by and among Lear Corporation, a Delaware corporation (such corporation and any
successor as defined in the Base Indenture, the “Company”), the Subsidiary Guarantors party hereto
and The Bank of New York Mellon Trust Company, N.A., as trustee (such institution and any successor
as defined in the Base Indenture, the “Trustee”).
WITNESSETH:
WHEREAS, the Company has previously executed and delivered an Indenture, dated as of March 26,
2010 (the “Base Indenture”), with the Trustee providing for the issuance from time to time of one
or more series of the Company’s senior debt securities;
WHEREAS, Section 301 of the Base Indenture provides that the Company and the Trustee may enter
into an indenture supplemental to the Base Indenture to establish the form or terms of Securities
of any series as permitted by Section 301 and Section 901 of the Base Indenture;
WHEREAS, the Company is entering into this First Supplemental Indenture to establish the form
and terms of its 7.875% Senior Notes due 2018 (the “2018 Notes”) and its 8.125% Senior Notes due
2020 (the “2020 Notes,” and together with the 2018 Notes, the “Notes”);
WHEREAS, the Base Indenture is incorporated herein by reference and the Base Indenture, as
supplemented by this First Supplemental Indenture is herein called the “Indenture” as that term is
defined in the Base Indenture; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this First
Supplemental Indenture and to make it a valid and binding obligation of the Company have been done
or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Company
and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the Notes.
ARTICLE 1 ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Establishment.
(a) There are hereby established two new series of Securities to be issued under this
Indenture, to be designated as the Company’s “7.875% Senior Notes due 2018” and “8.125% Senior
Notes due 2020.”
(b) There are to be authenticated and delivered on the date hereof (i) Three Hundred Fifty
Million Dollars ($350,000,000) aggregate principal amount of the 2018 Notes and (ii) (i) Three
Hundred Fifty Million Dollars ($350,000,000) aggregate principal amount of the 2020 Notes.
(c) The Notes shall be issued in the form of one or more permanent Notes in substantially the
form set out in Exhibit A-1, in the case of the 2018 Notes, and Exhibit A-2, in the
case of the 2020 Notes.
1
(d) Each Note shall be dated the date of authentication thereof and shall bear interest from
the date of original issuance thereof or from the most recent date to which interest has been paid
or duly provided for.
(e) With respect to the Notes (and any Subsidiary Guarantees endorsed thereon) only, the Base
Indenture shall be supplemented pursuant to Sections 201, 301 and 901 thereof to establish the
terms of the Notes (and any Subsidiary Guarantees endorsed thereon) as set forth in this First
Supplemental Indenture, including as follows:
| (i) | The provisions of Articles I, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV and XVI of the Base Indenture are deleted and replaced in their entirety by the provisions of Articles 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of this First Supplemental Indenture; | ||
| (ii) | The form and terms of the securities representing the Notes required to be established pursuant to Article II of the Base Indenture shall be established in accordance with Article 2 of this First Supplemental Indenture; |
To the extent that the provisions of this First Supplemental Indenture (including those referred to
in clauses (i) and (ii) immediately above) conflict with any provision of the Base Indenture, the
provisions of this First Supplemental Indenture shall govern and be controlling, solely with
respect to the Notes (and any Subsidiary Guarantees endorsed thereon).
(f) Unless otherwise expressly specified, references in this First Supplemental Indenture to
specific Article numbers or Section numbers refer to Articles and Sections contained in this First
Supplemental Indenture, and not the Base Indenture or any other document.
SECTION 1.02. Definitions
(a) All capitalized terms used herein and not otherwise defined below shall have the meanings
ascribed thereto in the Base Indenture.
(b) The following are definitions used in this First Supplemental Indenture and to the extent
that a term is defined both herein and in the Base Indenture, unless otherwise specified, the
definition in this First Supplemental Indenture shall govern solely with respect to the Notes (and
any Guarantee endorsed thereon).
“Additional Assets” means:
(1) any property or assets (other than Indebtedness) to be used by the Company or a Restricted
Subsidiary;
(2) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary described in clauses
(2) or (3) above is primarily engaged in a Permitted Business.
2
“Additional 2018 Notes” means, subject to the Company’s compliance with Section 4.07, 7.875%
Senior Notes due 2018 issued from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Indenture).
“Additional 2020 Notes” means, subject to the Company’s compliance with Section 4.07, 8.125%
Senior Notes due 2020 issued from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Indenture).
“Additional Notes” means the Additional 2018 Notes and the Additional 2020 Notes.
“Adjusted Treasury Rate for the 2018 Notes” means, with respect to any redemption date for the
2018 Notes, (1) the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release designated “H.15(519)”
or any successor publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue for the 2018 Notes (if no maturity is within three
months before or after March 15, 2014, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue for the 2018 Notes shall be determined and the
Adjusted Treasury Rate for the 2018 Notes shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month) or (2) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such
yields, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue for the 2018 Notes (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on the third Business
Day immediately preceding the redemption date, in each case of (1) and (2), plus 0.50%.
“Adjusted Treasury Rate for the 2020 Notes” means, with respect to any redemption date for the
2020 Notes, (1) the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release designated “H.15(519)”
or any successor publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue for the 2020 Notes (if no maturity is within three
months before or after March 15, 2015, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue for the 2020 Notes shall be determined and the
Adjusted Treasury Rate for the 2020 Notes shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month) or (2) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such
yields, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue for the 2020 Notes (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on the third Business
Day immediately preceding the redemption date, in each case of (1) and (2), plus 0.50%.
“Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. For purposes of the provisions described
under Section 4.08 and Section 4.09 only, “Affiliate” shall also mean any beneficial owner of
shares representing 10% or more of the total voting
3
power of the
Voting Stock (on a fully diluted basis) of the Company or of rights or warrants to purchase
such Voting Stock (whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
| “Agent” means any Registrar or Paying Agent. |
“Applicable Premium for the 2018 Notes” means, with respect to a 2018 Note at any redemption
date, the greater of (1) 1.00% of the principal amount of such 2018 Note and (2) the excess of (A)
the present value at such redemption date of (i) the redemption price of such 2018 Note on March
15, 2014 (such redemption price being described in the first paragraph in this section exclusive of
any accrued interest), plus (ii) all required remaining scheduled interest payments due on such
2018 Note through March 15, 2014 (but excluding accrued and unpaid interest to the redemption
date), computed using a discount rate equal to the Adjusted Treasury Rate for the 2018 Notes, over
(B) the principal amount of such note on such redemption date.
“Applicable Premium for the 2020 Notes” means, with respect to a 2020 Note at any redemption
date, the greater of (1) 1.00% of the principal amount of such 2020 Note and (2) the excess of (A)
the present value at such redemption date of (i) the redemption price of such 2020 Note on March
15, 2015 (such redemption price being described in the first paragraph in this section exclusive of
any accrued interest), plus (ii) all required remaining scheduled interest payments due on such
2020 Note through March 15, 2015 (but excluding accrued and unpaid interest to the redemption
date), computed using a discount rate equal to the Adjusted Treasury Rate for the 2020 Notes, over
(B) the principal amount of such note on such redemption date.
“Applicable Procedures” means with respect to any transfer, redemption or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depository that apply to
such transfer, redemption or exchange.
“Asset Disposition” means any sale, lease, transfer or other disposition (or series of sales,
leases, transfers or dispositions that are part of a common plan) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation, or similar transaction
(each referred to for the purposes of this definition as a “disposition”), of:
(1) any shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying
shares or shares required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary),
(2) all or substantially all the assets of any division or line of business of the Company or
any Restricted Subsidiary, or
(3) any other assets of the Company or any Restricted Subsidiary outside of the ordinary
course of business of the Company or such Restricted Subsidiary,
other than, in the case of clauses (1), (2) and (3) above,
(A) a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary;
(B) for purposes of the provisions described under Section 4.08 only, a disposition subject to
Section 4.05;
4
(C) a disposition of assets with a Fair Market Value of less than $10.0 million;
(D) a sale of accounts receivable and related assets (i) of the type specified in the
definition of “Qualified Receivables Transaction” or (ii) pursuant to factoring programs on
customary market terms for such transactions and with respect to receivables of, and generated by,
the Company or any Subsidiary;
(E) a transfer of accounts receivable and related assets of the type specified in the
definition of “Qualified Receivables Transaction” (or a fractional undivided interest therein) by a
Receivables Entity in a Qualified Receivables Transaction;
(F) the exchange or transfer within China of Chinese Acceptance Notes by Chinese Subsidiaries
of the Company;
(G) any sale, lease, transfer or other disposition of assets of a Foreign Subsidiary of the
Company to joint ventures that are not Restricted Subsidiaries of the Company so long as such
Foreign Subsidiary has received Fair Market Value for such assets; and
(H) a disposition of all or substantially all the Company’s assets (as determined on a
Consolidated basis) in accordance with the covenant described under Section 5.01.
“Attributable Debt” means, with respect to any Sale and Leaseback Transaction that does not
result in a Capitalized Lease Obligation, the present value (computed in accordance with GAAP) of
the total obligations of the lessee for rental payments during the remaining term of the lease
included in such Sale and Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon payment of a penalty,
the Attributable Debt shall be the lesser of:
(i) the Attributable Debt determined assuming termination upon the first date such lease may
be terminated (in which case the Attributable Debt shall also include the amount of the penalty,
but no rent shall be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated) and
(ii) the Attributable Debt determined assuming no such termination.
“Average Life” means, as of the date of determination, with respect to any Indebtedness or
Preferred Stock, the quotient obtained by dividing:
(1) the sum of the products of the number of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness or scheduled redemption or
similar payment with respect to such Preferred Stock multiplied by the amount of such payment by
(2) the sum of all such payments.
“Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New
York.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up,
liquidation, reorganization or the relief of debtors.
5
“Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of the board of directors of the Company.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.
“Capitalized Lease Obligations” means an obligation that is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and
the amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
“Cases” means the cases of the Company and certain of its Subsidiaries before the Bankruptcy
Court.
“Certificated Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 or 2.10 hereof, in substantially the form of Exhibit
A-1 or Exhibit A-2 hereto, except that such Note shall not bear the Global Note Legend
and shall not have the “Schedule of Increases or Decreases in the Global Note” attached thereto.
“Chinese Acceptance Notes” means acceptance notes issued by Chinese banks in the ordinary
course of business for the account of any direct or indirect Chinese Subsidiary of the Company or
customers thereof to effect the current payment of goods and services in accordance with customary
trade terms in China.
“Change of Control” means:
(1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that for purposes of this clause (1) such person shall be deemed to have “beneficial ownership” of
all shares that any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company;
(2) the first day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors;
(3) the adoption of a plan relating to the liquidation or dissolution of the Company; or
(4) the merger or consolidation of the Company with or into another Person or the merger of
another Person with or into the Company, or the sale of all or substantially all the assets of the
Company (as determined on a Consolidated basis) to another Person, and, in the case of any such
merger or consolidation, the securities of the Company that are outstanding immediately prior to
such transaction and which represent 100% of the aggregate voting power of the Voting Stock of the
Company are changed into or exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent immediately after
such transaction, at least a majority of the aggregate voting power of the Voting Stock of the
surviving Person or transferee.
6
“Code” means the Internal Revenue Code of 1986, as amended.
“Comparable Treasury Issue for the 2018 Notes” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining term of the 2018
Notes from the redemption date to March 15, 2014, that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of U.S. Dollar
denominated corporate debt securities of a maturity most nearly equal to March 15, 2014.
“Comparable Treasury Issue for the 2020 Notes” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining term of the 2020
Notes from the redemption date to March 15, 2015, that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of U.S. Dollar
denominated corporate debt securities of a maturity most nearly equal to March 15, 2015.
“Comparable Treasury Price” means, with respect to any redemption date, if clause (2) of the
definition of “Adjusted Treasury Rate for the 2018 Notes” or “Adjusted Treasury Rate for the 2020
Notes” is applicable, the average of three, or if not possible, such lesser number as is obtained
by the Company, Reference Treasury Dealer Quotations for such redemption date.
“Consolidated Interest Coverage Ratio” as of any date of determination means the ratio of:
(1) the aggregate amount of EBITDA for the period of the most recent four consecutive fiscal
quarters ending prior to the date of such determination for which financial statements are
available to
(2) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:
(A) if the Company or any Restricted Subsidiary has Incurred any Indebtedness since the
beginning of such period that remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated Interest Coverage Ratio is an
Incurrence of Indebtedness, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness
had been Incurred on the first day of such period and the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period;
(B) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than Indebtedness
Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio, EBITDA and Consolidated Interest Expense for such period
shall be calculated on a pro forma basis as if such discharge had occurred on the first day of such
period and as if the Company or such Restricted Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;
(C) if since the beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, the EBITDA for such period shall be reduced by an amount equal to the
EBITDA (if positive) directly attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the EBITDA (if negative) directly
attributable thereto
7
for such period and Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of the
Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its Restricted Subsidiaries in connection with such Asset Disposition
for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of such Restricted
Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer
liable for such Indebtedness after such sale);
(D) if since the beginning of such period the Company or any Restricted Subsidiary (by merger
or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person that
becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets
occurring in connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit, division or line of a business, EBITDA
and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect
thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period; and
(E) if since the beginning of such period any Person that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning
of such period shall have made any Asset Disposition or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (C) or (D) above if made by the Company
or a Restricted Subsidiary during such period, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto as if such Asset Disposition,
Investment or acquisition of assets occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, Asset Disposition or other Investment, the amount of income, EBITDA or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred
in connection therewith, the pro forma calculations shall be determined in good faith by a
responsible Financial Officer of the Company; provided that any pro forma adjustments shall be
limited to those that are (a) reasonably identifiable and factually supportable and (b) have
occurred or are reasonably expected to occur in the next twelve months following the date of such
calculation, in the reasonable judgment of a responsible Financial Officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term
as at the date of determination in excess of 12 months). If any Indebtedness is Incurred or repaid
under a revolving credit facility and is being given pro forma effect, the interest on such
Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the
four fiscal quarters subject to the pro forma calculation.
“Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its Consolidated Restricted Subsidiaries, plus, to the extent Incurred by the Company
and its Consolidated Restricted Subsidiaries in such period but not included in such interest
expense, without duplication:
(1) interest expense attributable to Capitalized Lease Obligations and the interest expense
attributable to leases constituting part of a Sale and Leaseback Transaction that does not result
in a Capitalized Lease Obligation,
8
(2) amortization of debt discount and debt issuance costs,
(3) capitalized interest,
(4) non-cash interest expense,
(5) commissions, discounts and other fees and charges attributable to letters of credit and
bankers’ acceptance financing,
(6) interest accruing on any Indebtedness of any other Person to the extent such Indebtedness
is Guaranteed by (or secured by the assets of) the Company or any Restricted Subsidiary and such
Indebtedness is in default under its terms or any payment is actually made in respect of such
Guarantee,
(7) net payments made or received pursuant to Hedging Obligations under Interest Rate
Agreements (including amortization of fees),
(8) dividends paid in cash or Disqualified Stock in respect of (A) all Preferred Stock of
Restricted Subsidiaries and (B) all Disqualified Stock of the Company, in each case held by Persons
other than the Company or a Restricted Subsidiary, and
(9) interest Incurred in connection with investments in discontinued operations,
and less, to the extent included in such total interest expense, (A) any breakage costs of Hedging
Obligations terminated in connection with the offering of the notes on the Issue Date and the
application of the net proceeds therefrom, (B) the amortization during such period of capitalized
financing costs, provided, however, that, for any financing consummated after the Issue Date, the
aggregate amount of amortization relating to any such capitalized financing costs deducted in
calculating Consolidated Interest Expense shall not exceed 5% of the aggregate amount of the
financing giving rise to such capitalized financing costs and (C) any accrued interest expense
subsequently discharged pursuant to applicable bankruptcy provisions. Notwithstanding anything to
the contrary contained herein, Consolidated Interest Expense for any period shall include any
interest income during such period.
“Consolidated Net Income” means, for any period, the net income of the Company and its
Consolidated Subsidiaries for such period; provided, however, that there shall not be included in
such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if such Person is not a Restricted
Subsidiary, except that:
(A) the Company’s equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other distribution
made to a Restricted Subsidiary, to the limitations contained in clause (3) below);
(B) the Company’s equity in a net loss of any such Person for such period shall be
included in determining such Consolidated Net Income to the extent such loss has been funded
with cash from the Company or a Restricted Subsidiary; and
(C) the Company’s or any Restricted Subsidiary’s equity in the net income of a joint
venture or similar entity of which the Company or a Restricted Subsidiary owns, through
9
securities or otherwise, at least 25% of the voting or economic interests and that is
not a Restricted Subsidiary shall be included in such Consolidated Net Income to the extent
permissible under GAAP; provided, however¸ that such equity in the net income of such joint
venture shall not be included if cash equal to such equity in the net income of such joint
venture is not readily procurable by the Company from such joint venture;
(2) any net income (or loss) of any Person acquired by the Company or a Subsidiary of the
Company in a pooling of interests transaction for any period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary if such Restricted Subsidiary is subject to
restrictions on the payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company (but, in the case of any Foreign Subsidiary,
only to the extent that the payment of cash dividends or the making of cash distributions, in each
case equal to such net income (or a portion thereof) for such period, by such Foreign Subsidiary to
the Company is contractually restricted (with the amount of such cash payments that is
contractually restricted being determined in good faith by a Financial Officer of the Company)),
except that:
(A) the Company’s equity in the net income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Restricted Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution made to another Restricted Subsidiary, to the limitation
contained in this clause); and
(B) the net loss of any such Restricted Subsidiary for such period shall not be
excluded in determining such Consolidated Net Income; provided, however, that such net
losses may be applied to the computation of Consolidated Net Income in subsequent periods
(i) if Consolidated Net Income in any period is zero or less or (ii) to the extent that the
application of such losses in any period would reduce Consolidated Net Income for such
period to less than zero;
(4) any gain (or loss) realized upon the sale or other disposition of any asset of the Company
or its Consolidated Subsidiaries (including pursuant to any Sale and Leaseback Transaction) that is
not sold or otherwise disposed of in the ordinary course of business and any gain (or loss)
realized upon the sale or other disposition of any Capital Stock of any Person;
(5) cash restructuring expenses in an amount not to exceed (A) the amount of actual cash
restructuring expenses for the fiscal year ended December 31, 2009, (B) $125.0 million for each of
the fiscal years ended December 31, 2010, 2011 and 2012, and (C) $50.0 million per fiscal year
thereafter, plus, in the case of each of (A), (B) and (C), to the extent that any amount permitted
to be included in a prior year pursuant to this clause (5) is not utilized, such unutilized amount
may be carried forward for use in only the next succeeding year;
(6) any extraordinary gain or loss; and
(7) the cumulative effect of a change in accounting principles.
“Consolidated Total Assets” means the total Consolidated assets of the Company and its
Restricted Subsidiaries, as shown on the most recent balance sheet of the Company.
10
“Consolidated Total Debt” means, at any date of determination, the aggregate amount of all
outstanding Indebtedness of the Company and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP.
“Consolidation” means, unless the context otherwise requires, the consolidation of (1) in the
case of the Company, the accounts of each of the Restricted Subsidiaries with those of the Company
and (2) in the case of a Restricted Subsidiary, the accounts of each Subsidiary of such Restricted
Subsidiary that is a Restricted Subsidiary with those of such Restricted Subsidiary, in each case
in accordance with GAAP consistently applied; provided, however, that “Consolidation” will not
include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the
Company or any Restricted Subsidiary in an Unrestricted Subsidiary will be accounted for as an
investment. The term “Consolidated” has a correlative meaning.
“Continuing Director” means, as of any date of determination, any member of the Board of
Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
the Base Indenture or in Section 11.02 hereof, or such other address as to which the Trustee may
give notice to the Company.
“Credit Agreement” means, collectively, the Amended and Restated Credit Facilities, dated as
of October 23, 2009 by and among the Company, the several lenders from time to time party thereto,
Barclays Bank, PLC, as Documentation Agent and JPMorgan Chase Bank, N.A., as Administrative Agent
and Collateral Agent (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and restatement
thereof), supplemented, replaced, extended or otherwise modified from time to time.
“Credit Facilities” means (1) the Credit Agreement and (2) one or more debt facilities,
indentures or other agreements refinancing, replacing, amending, restating or supplementing
(whether or not contemporaneously and whether or not related to the agreements specified above) or
otherwise restructuring or increasing the amount of available borrowings or other credit extensions
under (provided that such increase in the amount of available borrowings is permitted by Section
4.07 or making Restricted Subsidiaries of the Company a borrower, additional borrower or guarantor
under, all or any portion of the Indebtedness under such agreement or any successor, replacement or
supplemental agreement and whether including any additional obligors or with the same or any other
agent, lender or group of lenders or with other financial institutions or lenders.
“Currency Agreement” means with respect to any Person any foreign exchange contract, currency
swap agreements or other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.
“Custodian” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03(c) as Custodian with respect to the Notes, and any and
all successors thereto appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
11
“Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03(b) hereof as the Depositary with respect to the Notes,
and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provisions of this Indenture.
“Designated Non-Cash Consideration” means non-cash consideration received by the Company or
one of its Restricted Subsidiaries in connection with an Asset Disposition that is designated by
the Company as Designated Non-Cash Consideration, less the amount of cash or cash equivalents
received in connection with a subsequent sale of such Designated Non-Cash Consideration, which cash
and cash equivalents shall be considered Net Available Cash received as of such date and shall be
applied pursuant to Section 4.08.
“DIP Credit Agreement” means the Credit and Guarantee Agreement dated as of July 6, 2009 among
the Company and certain of its Subsidiaries, the lenders from time to time party thereto, JPMorgan
Chase Bank, N.A., as administrative agent, and the other parties thereto, as amended, supplemented
or otherwise modified prior to the date hereof.
“Disqualified Stock” means, with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital
Stock convertible or exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an Incurrence of
Indebtedness or Disqualified Stock, as applicable); or
(3) is redeemable at the option of the holder thereof, in whole or in part;
in the case of each of clauses (1), (2) and (3), on or prior to 180 days after the Stated
Maturity of the notes.
“Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States, any state of the United States or the District of Columbia.
“EBITDA” for any period means the Consolidated Net Income for such period, plus, without
duplication, the following to the extent deducted in calculating such Consolidated Net Income:
(1) income tax expense and state and local taxes of the Company and its Consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation expense of the Company and its Consolidated Restricted Subsidiaries;
(4) amortization expense of the Company and its Consolidated Restricted Subsidiaries
(excluding amortization expense attributable to a prepaid cash item that was paid in a prior
period);
12
(5) non-cash stock compensation expense and non-cash equity-linked expense;
(6) fees, costs, charges, commissions and expenses or other charges incurred during such
period in connection with the DIP Credit Agreement, the Cases, the Plan of Reorganization and the
transactions contemplated by the foregoing, the termination or settlement of executory contracts,
professional and accounting costs fees and expenses, management incentive, employee retention or
similar plans (in each case to the extent such plan was approved by the Bankruptcy Court to the
extent required), litigation costs and settlements, asset write-downs, income and gains recorded in
connection with the corporate reorganization effected in connection with the winding up the debtors
party to the Plan of Reorganization prior to emergence;
(7) any foreign exchange gains and losses;
(8) non-cash charges relating to Statement of Financial Accounting Standards No. 106,
Employers’ Accounting for Postretirement Benefits Other Than Pensions;
(9) any non-recurring fees, expenses or charges related to any equity offering, acquisition,
recapitalization or Incurrence of Indebtedness (including a refinancing thereof) (in each case,
whether or not successful), including any such fees, expenses, charges or change in control payment
related to the offering of the notes or other Indebtedness, and any amendment or other
modifications thereof, to the extent deducted in such period in computing Consolidated Net Income;
and
(10) all other non-cash charges of the Company and its Consolidated Restricted Subsidiaries
(excluding any such non-cash charge to the extent it represents an accrual of or reserve for cash
expenditures in any future period) less all non-cash items of income of the Company and its
Consolidated Restricted Subsidiaries, in each case for such period (other than normal accruals in
the ordinary course of business).
Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and
the depreciation and amortization and non-cash charges of, a Restricted Subsidiary of the Company
shall be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if (A) a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its shareholders or (B) in the case of any Foreign Subsidiary, the payment
of cash dividends or the making of cash distributions, in each case in a corresponding amount, by
such Foreign Subsidiary to the Company is not contractually restricted (as determined in good faith
by a Financial Officer of the Company), provided that to the extent cash of such Foreign Subsidiary
provided the basis for including the net income of such Foreign Subsidiary in Consolidated Net
Income pursuant to clause (3) of the definition of “Consolidated Net Income,” such cash shall not
be taken into account for the purposes of determining the amount of cash that is not contractually
restricted under this clause (B). Also, notwithstanding the foregoing, for purposes of calculating
EBITDA for each of the four fiscal quarter periods ending December 31, 2009, March 31, 2010 and
June 30, 2010, EBITDA for such four fiscal quarter periods shall equal EBITDA for the period
commencing on October 1, 2009 and ending on December 31, 2009, April 3, 2010 and July 3, 2010, as
applicable, multiplied by 4, 2 and 4/3, respectively.
“Equity Offering” means a public or private offering of Capital Stock (other than Disqualified
Stock) of the Company.
13
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction as such price is, unless specified otherwise in this Indenture, determined in good
faith by a Financial Officer of the Company or by the Board of Directors. Fair Market Value (other
than of any asset with a public trading market) of any asset or property (or group of assets or
property subject to an event giving rise to a requirement under this Indenture that “Fair Market
Value” be determined) in excess of $150.0 million shall be determined by the Board of Directors or
a duly authorized committee thereof.
“Financial Officer” means the Chief Financial Officer, the Treasurer or the Chief Accounting
Officer of the Company.
“Foreign Indebtedness” means Indebtedness Incurred by a Foreign Subsidiary.
“Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not organized
under the laws of the United States of America or any State thereof or the District of Columbia.
“GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the Issue Date set forth in:
(1) the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants,
(2) statements and pronouncements of the Financial Accounting Standards Board,
(3) such other statements by such other entities as approved by a significant segment of the
accounting profession, and
(4) the rules and regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins
and similar written statements from the accounting staff of the SEC.
All ratios and computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
“Global Note Legend” means the legend set forth in the form of Note attached hereto as
Exhibit A-1, with respect to the 2018 Notes, and Exhibit A-2, with respect to the
2020 Notes, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means the global Notes in the form of Exhibit A-1 or Exhibit
A-2 hereto issued in accordance with Article 2 hereof.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by
14
agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness
of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing any obligation.
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement or raw materials hedge agreement or any hedging
agreement entered into in connection with the issuance of convertible debt.
“Holder” means the Person in whose name a note is registered on the Registrar’s books.
“Incur” means issue, assume, Guarantee, incur or otherwise become liable for; provided,
however, that any Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed
to be Incurred by such Person at the time it becomes a Subsidiary. The term “Incurrence” when used
as a noun shall have a correlative meaning. The accretion of principal of a non-interest bearing
or other discount security shall not be deemed the Incurrence of Indebtedness.
“Indebtedness” means, with respect to any Person on any date of determination, without
duplication:
(1) the principal of and premium (if any) in respect of indebtedness of such Person for
borrowed money;
(2) the principal of and premium (if any) in respect of obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments;
(3) all obligations of such Person for the reimbursement of any obligor on any letter of
credit, bank guarantee, bankers’ acceptance or similar credit transaction (other than obligations
with respect to letters of credit, bank guarantees, bankers’ acceptances or similar credit
transactions securing obligations (other than obligations described in clauses (1), (2) and (5))
entered into in the ordinary course of business of such Person to the extent such letters of
credit, bank guarantees, bankers’ acceptances or similar credit transactions are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day
following payment on the letter of credit, bank guarantee, bankers’ acceptance or similar credit
transaction);
(4) all obligations of such Person to pay the deferred and unpaid purchase price of property
or services (except Trade Payables), which purchase price is due more than six months after the
date of placing such property in service or taking delivery and title thereto or the completion of
such services;
(5) all Capitalized Lease Obligations and all Attributable Debt of such Person;
(6) the amount of all obligations of such Person with respect to the redemption, repayment or
other repurchase of any Disqualified Stock or, with respect to any Subsidiary of such Person, any
Preferred Stock (but excluding, in each case, any accrued and unpaid dividends);
15
(7) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person; provided, however, that the amount of
Indebtedness of such Person shall be the lesser of:
(A) the Fair Market Value of such asset at such date of determination and
(B) the amount of such Indebtedness of such other Persons;
(8) Hedging Obligations of such Person; and
(9) all obligations of the type referred to in clauses (1) through (8) of other Persons for
the payment of which such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee.
Notwithstanding the foregoing, in connection with the purchase by the Company or any
Restricted Subsidiary of any business, the term “Indebtedness” will exclude post-closing payment
adjustments to which the seller may become entitled to the extent such payment is determined by a
final closing balance sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such payment is not
determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is
paid within 30 days thereafter. In addition, the term “Indebtedness” will exclude obligations of
Chinese Subsidiaries in respect of Chinese Acceptance Notes in the ordinary course of business.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above; provided, however, that in the case of
Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted
value thereof at such time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.
“Initial 2018 Notes” means $350,000,000 in aggregate principal amount of 2018 Notes issued
under this Indenture on the date hereof.
“Initial 2020 Notes” means $350,000,000 in aggregate principal amount of 2020 Notes issued
under this Indenture on the date hereof.
“Initial Notes” means the Initial 2018 Notes and the Initial 2020 Notes.
“Interest Payment Dates” shall have the meaning set forth in paragraph 1 of the Notes.
“Interest Rate Agreement” means, with respect to any Person, any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement to which such Person is party or of which it is
a beneficiary.
“Investment” in any Person means any direct or indirect advance, loan or other extension of
credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by, such Person.
16
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by Standard & Poor’s, or an equivalent rating by any other
Rating Agency.
“Issue Date” means March 26, 2010.
“Legal Holiday” means a Saturday, Sunday or other day on which the Trustee or banking
institutions are not required by law or regulation to be open in the State of New York or the State
of Illinois.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge in the
nature of an encumbrance of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating business.
“Net Available Cash” from an Asset Disposition means cash payments received (including any
cash payments received by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise and proceeds from the sale or other disposition of any securities received
as consideration, in each case only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or other obligations
relating to the properties or assets that are the subject of such Asset Disposition or received in
any other non-cash form) therefrom, in each case net of:
(1) all legal, accounting, investment banking, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a consequence of such Asset
Disposition;
(2) all payments made on any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind
with respect to such assets, or which must by its terms, or in order to obtain a necessary consent
to such Asset Disposition, or by applicable law be repaid out of the proceeds from such Asset
Disposition;
(3) all distributions and other payments required to be made to minority interest holders in
Subsidiaries or joint ventures as a result of such Asset Disposition; and
(4) appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP,
against any liabilities associated with the property or other assets disposed of in such Asset
Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition
(but only for so long as such reserve is maintained).
“Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash
proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as
a result thereof.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary of the Company.
“Officer” of a Subsidiary Guarantor has a correlative meaning.
“Officers’ Certificate” means a certificate signed by two Officers.
17
“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company, a Subsidiary Guarantor or
the Trustee.
“Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.
“Permitted Business” means any business engaged in by the Company or any Restricted Subsidiary
on the Issue Date and any Related Business.
“Permitted Liens” means, with respect to any Person:
(1) Liens to secure Indebtedness permitted pursuant to Section 4.07(b)(1);
(2) pledges or deposits by such Person under workers’ compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness) or leases to which such Person is a party,
or deposits to secure public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the payment of rent, in each case
Incurred in the ordinary course of business;
(3) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case
for sums not yet due or being contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to which such Person shall then
be proceeding with an appeal or other proceedings for review;
(4) Liens for taxes, assessments or other governmental charges not yet due or payable or
subject to penalties for non-payment or which are being contested in good faith by appropriate
proceedings;
(5) Liens in favor of issuers of surety or performance bonds or letters of credit, bank
guarantees, bankers’ acceptances or similar credit transactions issued pursuant to the request of
and for the account of such Person in the ordinary course of its business; provided, however, that
such letters of credit, bank guarantees, bankers’ acceptances and similar credit transactions do
not constitute Indebtedness;
(6) survey exceptions, encumbrances, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties which were not
Incurred in connection with Indebtedness for borrowed money and which do not in the aggregate
materially adversely affect the value of said properties or materially impair their use in the
operation of the business of such Person;
(7) Liens securing Indebtedness Incurred to finance the construction, purchase or lease of, or
repairs, improvements or additions to, property of such Person (including Indebtedness Incurred
under Section 4.07(b)(6); provided, however, that the Lien may not extend to any other property
(other than property related to the property being financed) owned by such Person or any of its
Subsidiaries at the time the Lien is Incurred, and the Indebtedness (other than any interest
thereon) secured by the Lien may not be Incurred more than 180 days after the later of the
acquisition, completion of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien;
18
(8) Liens existing on the Issue Date (other than Liens referred to in the foregoing clause
(1)) and extensions, renewals and replacements of any such Liens so long as the principal amount of
Indebtedness or other obligations secured thereby is not increased and so long as such Liens are
not extended to any other property of the Company or any of its Subsidiaries;
(9) Liens on property or shares of stock of another Person at the time such other Person
becomes a Subsidiary of such Person; provided, however, that such Liens are not created, Incurred
or assumed in connection with, or in contemplation of, such other Person becoming such a
Subsidiary; provided further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries, except pursuant to after acquired property clauses existing
in the applicable agreements at the time such Person becomes a Subsidiary which do not extend to
property transferred to such Person by the Company or a Restricted Subsidiary;
(10) Liens on property at the time such Person or any of its Subsidiaries acquires the
property, including any acquisition by means of a merger or consolidation with or into such Person
or any Subsidiary of such Person; provided, however, that such Liens are not created, Incurred or
assumed in connection with, or in contemplation of, such acquisition; provided further, however,
that the Liens do not extend to any other property owned by such Person or any of its Subsidiaries;
(11) Liens securing Indebtedness or other obligations of a Subsidiary of such Person owing to
such Person or a Restricted Subsidiary of such Person;
(12) Liens securing Hedging Obligations so long as such Hedging Obligations are permitted to
be Incurred hereunder;
(13) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of
any Indebtedness secured by any Lien referred to in the foregoing clauses (7), (8), (9) and (10);
provided, however, that:
(A) such new Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements, accessions, proceeds, dividends or distributions in
respect thereof) and
(B) the Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of:
(i) the outstanding principal amount or, if greater, committed amount of the
indebtedness secured by Liens described under clauses (7), (8), (9) or (10) at the
time the original Lien became a Permitted Lien hereunder; and
(ii) an amount necessary to pay any fees and expenses, including premiums,
related to such Refinancings;
(14) Liens on accounts receivables and related assets of the type specified in the definition
of “Qualified Receivables Transaction” Incurred in connection with a Qualified Receivables
Transaction;
(15) judgment Liens not giving rise to an Event of Default;
(16) Liens arising from Uniform Commercial Code financing statement filings regarding leases
that do not otherwise constitute Indebtedness entered into in the ordinary course of business;
19
(17) leases and subleases of real property which do not materially interfere with the ordinary
conduct of the business of the Company and its Subsidiaries;
(18) Liens which constitute bankers’ Liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with any bank or other financial institution,
whether arising by operation of law or pursuant to contract;
(19) Liens on specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(20) Liens on specific items of inventory or other goods and related documentation (and
proceeds thereof) securing reimbursement obligations in respect of trade letters of credit issued
to ensure payment of the purchase price for such items of inventory or other goods; and
(21) Liens on assets of Foreign Subsidiaries securing Indebtedness of a Foreign Subsidiary
permitted by Section 4.07(b)(13) and securing other obligations under the agreements governing or
relating to such Indebtedness, so long as such Liens do not encumber the Capital Stock of the
Company or any of its Subsidiaries;
(22) pledges or deposits made to support any obligations of the Company or any Restricted
Subsidiary (including cash collateral to secure obligations under letters of credit) so long as the
aggregate amount of such pledges and deposits does not exceed $350.0 million;
(23) other Liens to secure Indebtedness as long as the amount of outstanding Indebtedness
secured by Liens Incurred pursuant to this clause (23) does not exceed 15% of Consolidated Total
Assets of the Company, as determined based on the consolidated balance sheet of the Company as of
the end of the most recent fiscal quarter for which financial statements are available; provided,
however, notwithstanding whether this clause (23) would otherwise be available to secure
Indebtedness, Liens securing Indebtedness originally secured pursuant to this clause (23) may
secure Refinancing Indebtedness in respect of such Indebtedness and such Refinancing Indebtedness
shall be deemed to have been secured pursuant to this clause (23).
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
“Plan of Reorganization” means the First Amended Joint Plan of Reorganization Under Chapter 11
of the Bankruptcy Code of the Company and certain of its Subsidiaries dated September 18, 2009 (as
in effect on the date of confirmation thereof and as thereafter may be amended).
“Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) that is preferred as to the payment of dividends, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
“principal” of a note means the principal of the note plus the premium, if any, payable on the
note which is due or overdue or is to become due at the relevant time.
“Purchase
Money Indebtedness” means Indebtedness:
20
(1) consisting of the purchase price of property, plant or equipment whether through the
direct purchase of such assets or the Capital Stock of any Person owning such assets, conditional
sale obligations, obligations under any title retention agreement and other obligations Incurred in
connection with the acquisition, construction or improvement of such asset, in each case where the
amount of such Indebtedness does not exceed the greater of
(A) the cost of the asset being financed and
(B) the Fair Market Value of such asset; and
(2) Incurred to finance such acquisition, construction or improvement by the Company or a
Restricted Subsidiary of such asset whether through the direct purchase of such asset or the
Capital Stock of any Person owning such asset;
provided, however, that such Indebtedness is Incurred within 180 days after such acquisition or the
completion of such acquisition, construction or improvement.
“Purchase Money Note” means a promissory note of a Receivables Entity evidencing a line of
credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a
Receivables Entity in connection with a Qualified Receivables Transaction, which note:
(1) shall be repaid from cash available to the Receivables Entity, other than
(A) amounts required to be established as reserves;
(B) amounts paid to investors in respect of interest;
(C) principal and other amounts owing to such investors; and
(D) amounts paid in connection with the purchase of newly generated receivables and
(2) may be subordinated to the payments described in clause (1).
“Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of
its Subsidiaries may sell, convey or otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the Company or any of its Subsidiaries)
or
(2) any other Person (in the case of a transfer by a Receivables Entity),
or may grant a security interest in, any accounts receivable (whether now existing or arising in
the future) of the Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all contracts and all
Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
accounts receivable; provided, however, that the financing terms, covenants, termination events and
other provisions thereof shall be market terms (as determined in good faith by a Financial Officer
of the Company).
21
The grant of a security interest in any accounts receivable of the Company or any of its
Restricted Subsidiaries to secure Indebtedness under Credit Facilities shall not be deemed a
Qualified Receivables Transaction.
“Quotation Agent” means one of the Reference Treasury Dealers selected by the Company.
“Rating Agency” means Standard & Poor’s and Moody’s or, if Standard & Poor’s or Moody’s or
both shall not make a rating on the notes publicly available, a nationally recognized statistical
rating agency or agencies, as the case may be, selected by the Company (as certified by a
resolution of the Board of Directors) which shall be substituted for Standard & Poor’s or Moody’s
or both, as the case may be.
“Receivables Entity” means (a) a Wholly Owned Subsidiary of the Company which is designated by
the Board of Directors (as provided below) as a Receivables Entity or (b) another Person engaging
in a Qualified Receivables Transaction with the Company which Person engages in the business of the
financing of accounts receivable, and in either of clause (a) or (b):
(1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which
(A) is Guaranteed by the Company or any Subsidiary of the Company (excluding Guarantees
of obligations (other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings);
(B) is recourse to or obligates the Company or any Subsidiary of the Company in any way
other than pursuant to Standard Securitization Undertakings; or
(C) subjects any property or asset of the Company or any Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings;
(2) which is not an Affiliate of the Company or with which neither the Company nor any
Subsidiary of the Company has any material contract, agreement, arrangement or understanding other
than on terms which the Company reasonably believes to be no less favorable to the Company or such
Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of
the Company; and
(3) to which neither the Company nor any Subsidiary of the Company has any obligation to
maintain or preserve such entity’s financial condition or cause such entity to achieve certain
levels of operating results.
Any such designation by the Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.
“Reference Treasury Dealer” means Citigroup Global Markets Inc. and its successors and assigns
and two other nationally recognized investment banking firms selected by the Company that are
primary U.S. Government securities dealers.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Company, of the bid and asked prices for
the
22
Comparable Treasury Issue, expressed in each case as a percentage of its principal amount,
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day immediately preceding such redemption date.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for,
such Indebtedness, including, in any such case from time to time, after the discharge of the
Indebtedness being Refinanced. “Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Indebtedness” means Indebtedness that is Incurred to Refinance (including
pursuant to any defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Issue Date or Incurred in compliance with this Indenture
(including Indebtedness of the Company that Refinances Refinancing Indebtedness); provided,
however, that:
(1) the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of
the Indebtedness being Refinanced,
(2) the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness
is Incurred that is equal to or greater than the remaining Average Life of the Indebtedness being
refinanced,
(3) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) that is equal to or less than the aggregate
principal amount of the Indebtedness being refinanced (or if issued with original issue discount,
the aggregate accreted value) then outstanding (or that would be outstanding if the entire
committed amount of any credit facility being Refinanced were fully drawn (other than any such
amount that would have been prohibited from being drawn pursuant to Section 4.07)) (plus fees and
expenses, including any premium and defeasance costs), and
(4) if the Indebtedness being Refinanced is subordinated in right of payment to the notes,
such Refinancing Indebtedness is subordinated in right of payment to the notes at least to the same
extent as the Indebtedness being Refinanced; provided further, however, that Refinancing
Indebtedness shall not include:
(A) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that
Refinances Indebtedness of the Company; or
(B) Indebtedness of the Company or a Restricted Subsidiary that Refinances Indebtedness
of an Unrestricted Subsidiary.
“Regular Record Date” for the interest payable on any Interest Payment Date means the
applicable date specified as a “Record Date” on the face of the Note.
“Related Business” means any business reasonably related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the Issue Date.
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.
“Sale and Leaseback Transaction” means an arrangement relating to property, plant or equipment
now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the
23
Company or a Restricted Subsidiary transfers such property to a Person and the Company or such
Restricted Subsidiary leases it from such Person, other than (i) leases between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries or (ii) any such transaction entered into
with respect to any property, plant or equipment or any improvements thereto at the time of, or
within 180 days after, the acquisition or completion of construction of such property, plant or
equipment or such improvements (or, if later, the commencement of commercial operation of any such
property, plant or equipment), as the case may be, to finance the cost of such property, plant or
equipment or such improvements, as the case may be.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness of the Company secured by a Lien. “Secured
Indebtedness” of a Subsidiary has a correlative meaning.
“Securities Act” means the Securities Act of 1933, as amended.
“Senior Indebtedness” of the Company or any Subsidiary Guarantor, as the case may be, means
the principal of, premium (if any) and accrued and unpaid interest on (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization of the Company or any
Subsidiary Guarantor, as applicable, regardless of whether or not a claim for post-filing interest
is allowed in such proceedings), and fees and other amounts owing in respect of, Indebtedness under
Credit Facilities, the notes (in the case of the Company), the Subsidiary Guarantees (in the case
of the Subsidiary Guarantors) and all other indebtedness of the Company or any Subsidiary
Guarantor, as applicable, whether outstanding on the Issue Date or thereafter Incurred, unless in
the instrument creating or evidencing the same or pursuant to which the same is outstanding it is
provided that such obligations are subordinated in right of payment to the notes or such Subsidiary
Guarantor’s Subsidiary Guarantee, as applicable; provided, however, that Senior Indebtedness of the
Company or any Subsidiary Guarantor shall not include:
(1) any obligation of the Company to any Subsidiary of the Company or of such Subsidiary
Guarantor to the Company or any other Subsidiary of the Company;
(2) any liability for Federal, state, local or other taxes owed or owing by the Company or
such Subsidiary Guarantor, as applicable;
(3) any accounts payable or other liability to trade creditors arising in the ordinary course
of business (including Guarantees thereof or instruments evidencing such liabilities);
(4) any Indebtedness or obligation of the Company (and any accrued and unpaid interest in
respect thereof) that by its terms is subordinate or junior in right of payment to any other
Indebtedness or obligation of the Company or such Subsidiary Guarantor, as applicable, including
any Subordinated Obligations of the Company or such Subsidiary Guarantor, as applicable;
(5) any obligations with respect to any Capital Stock; or
(6) any Indebtedness Incurred in violation of this Indenture.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.
24
“Standard & Poor’s” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating business.
“Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which, taken as a whole,
are customary in an accounts receivable transaction.
“Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred). “Subordinated
Obligation” means any Indebtedness of the Company (whether outstanding on the Issue Date or
thereafter Incurred) that by its terms is subordinate or junior in right of payment to the notes.
“Subordinated Obligation” of a Subsidiary Guarantor has a correlative meaning.
“Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by:
(1) such Person,
(2) such Person and one or more Subsidiaries of such Person or
(3) one or more Subsidiaries of such Person.
The term “Subsidiary” also shall include any corporation, limited liability company,
partnership or other entity that: (1) under GAAP may be consolidated with the Company for
financial reporting purposes; and (2) has been designated as a Subsidiary of the Company by the
Board of Directors of the Company for so long as such designation remains in effect.
“Subsidiary Guarantee” means each Guarantee of the obligations with respect to the notes
issued by a Subsidiary of the Company pursuant to the terms of this Indenture.
“Subsidiary Guarantor” means any Subsidiary that has issued a Subsidiary Guarantee.
“Temporary Cash Investments” means any of the following:
(1) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;
(2) investments in commercial paper maturing within 270 days from the date of acquisition
thereof, and having, at such date of acquisition, ratings of A1 from Standard & Poor’s and P1 from
Moody’s;
(3) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof and issued or guaranteed by or placed with,
and
25
money market deposit accounts issued or offered by any commercial bank organized under the
laws of the United States of America or any state thereof which has a short-term deposit rating of
A1 from Standard & Poor’s and P1 from Moody’s and has a combined capital and surplus and undivided
profits of not less than $500 million;
(4) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (1) above and entered into with a financial institution described in
clause (3) above;
(5) money market funds that
(A) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company
Act of 1940,
(B) are rated AAA by Standard & Poor’s and Aaa by Moody’s and
(C) have portfolio assets of at least $5.0 billion; and
(6) in the case of any Foreign Subsidiary,
(A) marketable direct obligations issued or unconditionally guaranteed by the sovereign
nation in which such Foreign Subsidiary is organized and is conducting business or issued by
any agency of such sovereign nation and backed by the full faith and credit of such
sovereign nation, in each case maturing within one year from the date of acquisition, so
long as the indebtedness of such sovereign nation is rated at least A by Standard & Poor’s
or A2 by Moody’s or carries an equivalent rating from a comparable foreign rating agency,
(B) investments of the type and maturity described in clauses (2) through (5) of
foreign obligors, which investments or obligors have ratings described in such clauses or
equivalent ratings from comparable foreign rating agencies,
(C) investments of the type and maturity described in clause (3) in any obligor
organized under the laws of a jurisdiction other than the United States that (i) is a branch
or subsidiary of a lender or the ultimate parent company of a lender under any Credit
Facilities (but only if such lender meets the ratings and capital, surplus and undivided
profits requirements of such clause (3)) or (ii) carries a rating at least equivalent to the
rating of the sovereign nation in which it is located, and
(D) other investments of the type and maturity described in clause (3) in obligors
organized under the laws of a jurisdiction other than the United States in any country in
which such Subsidiary is located; provided that the investments permitted under this
subclause (D) shall be made in amounts and jurisdictions consistent with the Company’s
policies governing short-term investments.
“Total Leverage Ratio” means, as of the date of determination, the ratio of (a) Consolidated
Total Debt to (b) EBITDA for the most recently ended four fiscal quarter period ending immediately
prior to the date for which financial statements are internally available; provided, however, that:
(A) if the Company or any Restricted Subsidiary has Incurred any Indebtedness since the
beginning of such period that remains outstanding on such date of determination or if the
transaction giving rise to the calculation of the Total Leverage Ratio is an Incurrence of
Indebtedness, then the
26
calculation of EBITDA and Consolidated Total Debt for purposes of this definition for such
period shall give effect on a pro forma basis to such new Indebtedness as if such Indebtedness had
been Incurred on the first day of such period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period;
(B) if the Company or any Restricted Subsidiary has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of such period or if any Indebtedness is to be
repaid, repurchased, defeased or otherwise discharged (in each case other than Indebtedness
Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid
and has not been replaced) on the date of the transaction giving rise to the calculation of the
Total Leverage Ratio, then the calculation of EBITDA and Consolidated Total Debt for purposes of
this definition for such period shall give effect on a pro forma basis to such repayment,
repurchase, defeasance or discharge as if it had occurred on the first day of such period and as if
the Company or such Restricted Subsidiary had not earned the interest income, if any, actually
earned during such period in respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such Indebtedness;
(C) if since the beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, then EBITDA for such period shall be reduced by an amount equal to the
EBITDA (if positive) directly attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the EBITDA (if negative) directly
attributable thereto for such period;
(D) if since the beginning of such period the Company or any Restricted Subsidiary (by merger
or otherwise) shall have made an Investment in any Restricted Subsidiary (or any Person that
becomes a Restricted Subsidiary) or an acquisition of assets, including any acquisition of assets
occurring in connection with a transaction giving rise to a calculation hereunder, which
constitutes all or substantially all of an operating unit, division or line of a business, then
EBITDA for such period shall be calculated after giving pro forma effect to such Investment or
acquisition (including the Incurrence of any Indebtedness) as if it occurred on the first day of
such period; and
(E) if since the beginning of such period any Person that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning
of such period shall have made any Asset Disposition or any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (C) or (D) above if made by the Company
or a Restricted Subsidiary during such period, then EBITDA for such period shall be calculated
after giving pro forma effect to such Asset Disposition, Investment or acquisition of assets as if
it occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, Asset Disposition or other Investment, the amount of income, EBITDA or earnings relating
thereto, the pro forma calculations shall be determined in good faith by a responsible Financial
Officer of the Company; provided that any pro forma adjustments shall be limited to those that are
(a) reasonably identifiable and factually supportable and (b) have occurred or are reasonably
expected to occur in the next twelve months following the date of such calculation, in the
reasonable judgment of a responsible Financial Officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term
as at the
27
date of determination in excess of 12 months). If any Indebtedness is Incurred or repaid
under a revolving credit facility and is being given pro forma effect, the interest on such
Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the
four fiscal quarters subject to the pro forma calculation.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
Issue Date.
“Trade Payables” means, with respect to any Person, any accounts payable or any indebtedness
or monetary obligation to trade creditors created, assumed or Guaranteed by such Person arising in
the ordinary course of business in connection with the acquisition of goods or services.
“Trustee” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor.
“Trust Officer” means the Chairman of the Board, the President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Company that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds
any Lien on any property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided, however¸ that (i) the Subsidiary to be
so designated has total Consolidated assets of $1,000 or less; (ii) at the time of such
designation, the Company could have made a Restricted Payment under Section 4.05(a)(C) or Section
4.05(b)(10) in an amount equal to the lesser of (A) the Company’s Investment in such Restricted
Subsidiary and (B) the Fair Market Value of the net assets of such Restricted Subsidiary, in each
case at the time of such designation; or (iii) such Subsidiary is a Foreign Subsidiary that is a
joint venture or similar entity.
The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation:
(x) (1) the Company could Incur $1.00 of additional Indebtedness under Section 4.07(a) or (2)
the Consolidated Interest Coverage Ratio for the Company and its Restricted Subsidiaries would be
the same or greater after giving effect to such designation than before such designation; and
(y) no Default shall have occurred and be continuing.
Any such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by
the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy
of the resolution of the Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.
28
“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination.
“U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuer’s option.
“Voting Stock” of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
“Wholly Owned Subsidiary” means a Restricted Subsidiary of the Company all the Capital Stock
of which (other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.
SECTION 1.03. Other Definitions.
| Term | Defined in Section | |
Acceleration Notice |
6.02 | |
Affiliate Transaction |
4.09(a) | |
Asset Sale Offer |
4.08 | |
Authentication Order |
2.02(d) | |
Change of Control Offer |
4.11(a) | |
Change of Control Payment Date |
4.11(a) | |
Company |
Preamble | |
Covenant Defeasance |
8.03 | |
DTC |
2.03(b) | |
Events of Default |
6.01 | |
Guaranteed Obligations |
10.01 | |
Initial Lien |
4.10 | |
Legal Defeasance |
8.02 | |
Material Capital Markets Indebtedness |
4.13 | |
Material Indebtedness |
4.13 | |
Notes |
Preamble | |
Paying Agent |
2.03(a) | |
Redemption Date |
2.08(d) | |
Registrar |
2.03(a) | |
Restricted Payment |
4.05(a) | |
Reversion Date |
4.15(a) | |
Surviving Company |
5.01(a)(1) | |
Surviving Guarantor |
5.01(b)(1) | |
Suspended Covenants |
4.15(a) | |
Suspension Date |
4.15(a) | |
Suspension Period |
4.15(a) | |
Trustee |
Preamble |
29
SECTION 1.04. Incorporation by Reference of Trust Indenture Act.
(a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes and the Subsidiary Guarantees;
“indenture security holder” means a Holder;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes means the Company and any successor obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein
have the meanings so assigned to them either in the TIA, by another statute or SEC rule, as
applicable.
SECTION 1.05. Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;
(iii) “or” is not exclusive;
(iv) words in the singular include the plural, and in the plural include the singular;
(v) all references in this instrument to “Articles,” “Sections” and other subdivisions are to
the designated Articles, Sections and subdivisions of this instrument as originally executed;
(vi) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision.
(vii) “including” means “including without limitation;”
(viii) provisions apply to successive events and transactions; and
(ix) references to sections of or rules under the Securities Act, the Exchange Act or the TIA
shall be deemed to include substitute, replacement or successor sections or rules adopted by the
SEC from time to time thereunder.
ARTICLE 2
THE NOTES
THE NOTES
30
Pursuant to Section 201 of the Base Indenture, the provisions of this Article 2 establish the
form of the Notes under this First Supplemental Indenture, and to the extent that any provisions of
this Article 2 are duplicative, or in contradiction with, the Base Indenture, the provisions of
this Article 2 shall govern the Notes.
SECTION 2.01. Form and Dating.
(a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A-1 hereto with respect to the 2018 Notes and in the
form of Exhibit A-2 with respect to the 2020 Notes, each of which is hereby incorporated in
and expressly made part of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage in addition to those set forth on Exhibit A-1
and Exhibit A-2. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $2,000 and integral multiples of $1,000 thereafter. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture
and the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
(b) Book-Entry Provisions. This Section 2.01(b) shall only apply to Global Notes
deposited with the Trustee, as custodian for the Depositary. Participants and Indirect Participants
shall have no rights under this Indenture with respect to any Global Note held on their behalf by
the Depositary or by the Trustee as the custodian for the Depositary or under such Global Note, and
the Depositary shall be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants or Indirect Participants,
the Applicable Procedures or the operation of customary practices of the Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global Note.
(c) Certificated Notes. Except as otherwise provided herein, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes.
For greater certainty, the provisions of this Section 2.01(c) are subject to the requirements
relating to notations, legends or endorsements on Notes required by law, stock exchange rule, or
agreements to which any the Company is subject, if any.
SECTION 2.02. Execution and Authentication.
(a) One Officer shall sign the Notes for the Company by manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that office at the time a Note
is authenticated, the Note shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by one Officer (an
“Authentication Order”), authenticate Notes for original issue.
31
(e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same rights as an Agent to
deal with Holders or an Affiliate of the Company or any of their respective Subsidiaries.
SECTION 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying
Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary
with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes, and the Trustee hereby initially agrees so to
act.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and
shall notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to
the Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date or such shorter time as the Trustee
may allow, as the Trustee may reasonably require of the names and addresses of the Holders, and the
Company shall otherwise comply with TIA Section 312(a).
32
Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or under the Notes. The Company, the Trustee, the Registrar and
any other Person shall have the protection of TIA Section 312(c).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When Certificated Notes are
presented to the Registrar with a request:
(1) to register the transfer of such Certificated Notes; or
(2) to exchange such Certificated Notes for an equal principal amount of Certificated
Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Certificated Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing;
(b) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global
Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note
except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a
Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with written instructions directing the Trustee to make, or
to direct the Custodian to make, an adjustment on its books and records with respect to such Global
Note to reflect an increase in the aggregate principal amount of the Notes represented by the
Global Note, then the Trustee shall cancel such Certificated Note and cause, or direct the
Custodian to cause, in accordance with the standing instructions and procedures existing between
the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global
Note to be increased accordingly. If no Global Notes are then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’
Certificate from the Company, a new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and exchange of Global Notes
or beneficial interests therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depositary therefor.
(d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding any other
provisions of this Indenture (other than the provisions set forth in subsection (e) of this Section
2.06), a Global Note may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.
(e) Authentication in Absence of Depositary. If at any time:
(1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;
33
(2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Certificated Notes and delivers a written notice to
such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes and beneficial owners holding interests representing an aggregate principal amount
of at least 51% of such Notes represented by Global Notes advise the Trustee in writing that
the continuation of a book-entry system through the Depositary is no longer in such owner’s
best interests.
then the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate requesting
the authentication and delivery of Certificated Notes to the Persons designated by the Company,
will authenticate and deliver Certificated Notes, in an aggregate principal amount equal to the
principal amount of Global Notes, in exchange for such Global Notes.
(f) Cancellation and/or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for Certificated Notes, redeemed, repurchased
or canceled, such Global Note shall be returned to the Depositary for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for Certificated Notes, redeemed, repurchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on
the books and records of the Trustee (if it is then the Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Notes.
(1) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Certificated Notes and Global Notes at the Registrar’s
request.
(2) No service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith.
(3) The Registrar shall not be required to register the transfer of or exchange of (a)
any Note selected for redemption in whole or in part pursuant to Article 3, except the
unredeemed portion of any Note being redeemed in part, or (b) any Note for a period
beginning 15 Business Days before the mailing of a notice of an offer to repurchase or
redeem Notes or 15 Business Days before an Interest Payment Date (whether or not an Interest
Payment Date or other date determined for the payment of interest), and ending on such
mailing date or Interest Payment Date, as the case may be.
(4) Prior to the due presentation for registration of transfer of any Note, the
Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent or the Registrar shall be affected by notice to the contrary.
(5) All Notes issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same benefits under this
Indenture as the Notes surrendered upon such transfer or exchange.
34
(h) No Obligation of the Trustee.
(1) The Trustee shall have no responsibility or obligation to any beneficial owner of a
Global Note, a member of, or a participant in the Depositary or other Person with respect to
the accuracy of the records of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only to or upon the
order of the registered Holders (which shall be the Depositary or its nominee in the case of
a Global Note). The rights of beneficial owners in any Global Note in global form shall be
exercised only through the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any beneficial
owners.
(2) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note (including without
limitation any transfers between or among Depositary participants, members or beneficial
owners in any Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note had become or is about to become
due and payable, the Company, in its discretion, may, instead of issuing a new Note, pay such Note,
upon satisfaction of the conditions set forth in the preceding paragraph.
Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies of any Holder with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Note.
SECTION 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section
35
2.08 as not outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the
Company shall not be deemed to be outstanding for purposes of Section 2.08(b) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced note is held by a bona fide
purchaser.
(c) If the principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
segregates and holds in trust, in accordance with this Indenture, on a date of redemption (a
“Redemption Date”) or maturity date, money sufficient to pay all principal, premium, if any, and
interest payable on that date with respect to the Notes payable on that date, then on and after
that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, amendment, supplement, waiver or consent, Notes owned by the Company, or by any
Affiliate of the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
amendment, supplement, waiver or consent, only Notes that the Trustee knows are so owned shall be
so disregarded.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of Certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
Certificated Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent, upon direction by the Company and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
such cancelled Notes in accordance with its customary procedures (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all cancelled Notes shall be
delivered to the Company from time to time upon written request. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. CUSIP or ISIN Numbers.
The Company in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a
36
convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the Trustee of any change
in the “CUSIP” or “ISIN” numbers.
SECTION 2.13. Additional Notes.
The Company shall be entitled, subject to its compliance with Section 4.07 hereof, to issue
Additional 2018 Notes and Additional 2020 Notes under this Indenture in an unlimited aggregate
principal amount, each of which shall have identical terms as the Initial 2018 Notes and Initial
2020 Notes, respectively, other than with respect to the date of issuance and issue price and first
payment of interest. The Initial 2018 Notes and Initial 2020 Notes, respectively, and any
Additional 2018 Notes and Additional 2020 Notes shall be treated as a single class for all purposes
under this Indenture, including without limitation, waivers, amendments, redemptions and offers to
purchase.
With respect to any Additional Notes, the Company shall set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture; and
(b) the issue price, the issue date and the CUSIP number(s) of such Additional Notes;
provided, however, that no Additional Notes may be issued at a price that would cause such
Additional Notes to have “original issue discount” within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended.
ARTICLE 3
REDEMPTION AND PREPAYMENT
REDEMPTION AND PREPAYMENT
To the extent that any provisions of this Article 3 are duplicative or conflict with any
provision of the Base Indenture, this Article 3 shall govern and be controlling solely with respect
to the Notes.
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem any series of Notes pursuant to the optional redemption
provisions of Sections 3.07 and 3.08 hereof and paragraph 5 of the Notes, it shall furnish to the
Trustee an Officers’ Certificate setting forth (i) the Section of this Indenture pursuant to which
the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of 2018 Notes or
2020 Notes, as applicable, to be redeemed, and (iv) the redemption price. If the Company elects to
redeem any series of Notes pursuant to the provisions of Sections 3.07 and 3.08 hereof and
paragraph 5 of the Notes, it shall furnish such Officers’ Certificate to the Trustee at least 30
days but not more than 60 days before a Redemption Date unless a shorter notice shall be reasonably
satisfactory to the Trustee. Each Officers’ Certificate shall be accompanied by an Opinion of
Counsel from the Company to the effect that such redemption will comply with the conditions herein.
Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall, therefore, be void and of no effect.
SECTION 3.02. Selection of Notes to be Redeemed.
37
If less than all of the Notes of any series are to be redeemed or purchased at any time, the
Trustee shall select the Notes or such series to be redeemed or purchased, (i) if the applicable
Notes are listed, in compliance with the requirements of the principal national securities exchange
on which the applicable Notes are listed, or (ii) if the applicable Notes are not so listed, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion shall deem to be
fair and appropriate. In the event of partial redemption, the particular Notes to be redeemed shall
be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the
Redemption Date by the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of
$1,000 thereafter; except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to
be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including the CUSIP or ISIN number) and
shall state:
(a) the Redemption Date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal amount of such Note to
be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect the
redemption price;
(f) that, unless the Company defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph of the Notes and Section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Notes.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense, provided, however, that the Company gives the Trustee at least 3 Business
Days
38
prior notice of such request. Any redemption and notice thereof may, in the Company’s
discretion, be subject to the satisfaction of one or more conditions precedent.
SECTION 3.04. Effect of Notice Upon Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price stated
in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued interest to the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on the related Interest
Payment Date). Failure to give notice or any defect in the notice to any Holder shall not affect
the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
On or before 11:00 a.m. Eastern Time on any Redemption Date, the Company shall deposit with
the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Notes (or portions of Notes) to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the
Redemption Date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption, whether or not such Notes are presented for payment. If a Note is redeemed on or after
a Regular Record Date but on or prior to the related Interest Payment Date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was registered at the close of
business on such Regular Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal from the Redemption Date until such
principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.01 hereof.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the
Company’s written request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption for the 2018 Notes.
Except as set forth in subparagraphs (a), (b) and (d) below, the 2018 Notes are not redeemable
before March 15, 2014.
(a) At any time prior to March 15, 2014, the Company may, at its option, redeem all or part of
the Notes (which includes Additional 2018 Notes, if any), at a redemption price equal to 100% of
the principal amount of 2018 Notes redeemed plus the Applicable Premium for the 2018 Notes, as of,
and accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the
rights of Holders on the relevant record date to receive interest due on the relevant Interest
Payment Date).
39
(b) At any time prior to March 15, 2014, during any 12-month period commencing on the
Issue Date, the Company may, at its option, redeem up to 10% of the aggregate principal amount of
the 2018 Notes issued under this Indenture (calculated giving effect to any issuance of Additional
2018 Notes) at a redemption price equal to 103.000% of the principal amount thereof, plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment Date).
(c) On or after March 15, 2014, the Company may, at its option, redeem all or a part of the
2018 Notes, at the redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest, if any, thereon to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on March 15 of the years indicated below:
| Year | Percentage | |||
2014 |
103.938 | % | ||
2015 |
101.969 | % | ||
2016 and thereafter |
100.000 | % | ||
(d) Notwithstanding the provisions of subparagraphs (a), (b) and (c) of this Section 3.07, at
any time prior to March 15, 2013, the Company may, at its option, on one or more occasions redeem
up to 35% of the aggregate principal amount of 2018 Notes issued under this Indenture (which
includes the Additional 2018 Notes, if any) at a redemption price of 107.875% of the principal
amount thereof, plus accrued and unpaid interest, if any, to, but not including, the Redemption
Date (subject to the right of Holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date), with the Net Cash Proceeds of one or more Equity Offerings;
provided that:
(1) at least 65% of the original aggregate principal amount of the 2018 Notes issued
under this Indenture (calculated after giving effect to any issuance of Additional 2018
Notes) remains outstanding immediately after giving effect to such redemption; and
(2) any such redemption by the Company must be made within 90 days after the closing of
such Equity Offering.
(e) Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
SECTION 3.08. Optional Redemption for the 2020 Notes.
Except as set forth in subparagraphs (a), (b) and (d) below, the 2020 Notes are not redeemable
before March 15, 2015.
(a) At any time prior to March 15, 2015, the Company may, at its option, redeem the 2020 Notes
(which includes Additional 2020 Notes, if any), in whole or in part, at a redemption price equal
to 100% of the principal amount of the 2020 Notes redeemed plus the Applicable Premium for the 2020
Notes, as of, and accrued and unpaid interest, if any, to, but not including, the Redemption Date
(subject to the rights of Holders of Notes on the relevant record date to receive interest due on
the relevant Interest Payment Date).
(b) At any time prior to March 15, 2015, during any 12-month period commencing on the Issue
Date, the Company may, at its option, redeem up to 10% of the aggregate principal amount of the
2020 Notes issued under this Indenture (calculated giving effect to any issuance of Additional 2020
Notes) at a redemption price equal to 103.000% of the principal amount thereof, plus accrued and
unpaid
40
interest to the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date).
(c) On or after March 15, 2015, the Company may, at its option, redeem all or a part of the
2020 Notes, at the redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest, if any, thereon to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on March 15 of the years indicated below:
| Year | Percentage | |||
2015 |
104.063 | % | ||
2016 |
102.708 | % | ||
2017 |
101.354 | % | ||
2018 and thereafter |
100.000 | % | ||
(d) Notwithstanding the provisions of subparagraphs (a), (b) and (c) of this Section 3.08, at
any time prior to March 15, 2013, the Company may, at its option, on one or more occasions redeem
up to 35% of the aggregate principal amount of 2020 Notes issued under this Indenture (which
includes the Additional 2020 Notes, if any) at a redemption price of 108.125% of the principal
amount thereof, plus accrued and unpaid interest, if any, to, but not including, the Redemption
Date (subject to the right of Holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date), with the Net Cash Proceeds of one or more Equity Offerings;
provided that:
(1) at least 65% of the original aggregate principal amount of the 2020 Notes issued
under this Indenture (calculated after giving effect to any issuance of Additional 2020
Notes) remains outstanding immediately after giving effect to such redemption; and
(2) any such redemption by the Company must be made within 90 days after the closing of
such Equity Offering.
(e) Any prepayment pursuant to this Section 3.08 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
SECTION 3.09. Mandatory Redemption.
Except as set forth in Section 4.08 and 4.11 hereof, the Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
COVENANTS
To the extent that any provisions of this Article 4 are duplicative or conflict with any
provision of the Base Indenture, this Article 4 shall govern and be controlling solely with respect
to the Notes.
SECTION 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if any, interest on, the
Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal,
premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for and sufficient to
pay all principal, premium,
41
if any, and interest then due and the Paying Agent is not prohibited from paying such money to
the Holders on that date. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may be an office or drop facility of
the Trustee or an affiliate of the Trustee or Registrar) where Notes may be presented or
surrendered for registration of transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
(b) The Company may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such other office or
agency.
(c) The Company hereby designates the Corporate Trust Office of the Trustee, as one such
office, drop facility or agency of the Company in accordance with Section 4.02(a).
SECTION 4.03. Reports.
(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are
outstanding, the Company will provide the Trustee and Holders and prospective Holders within the
time periods specified in the SEC’s rules and regulations (plus any extensions granted pursuant to
SEC rules), copies of:
(1) annual reports on Form 10-K, or any successor or comparable form, containing the
information required to be contained therein, or required in such successor or comparable
form;
(2) quarterly reports on Form 10-Q, containing the information required to be contained
therein, or any successor or comparable form;
(3) from time to time after the occurrence of an event required to be therein reported,
such other reports on Form 8-K, or any successor or comparable form; and
(4) any other information, documents and other reports which the Company would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act.
(b) Notwithstanding whether the Company is subject to the periodic reporting requirements of
the Exchange Act, the Company will nevertheless continue filing the reports specified above unless
the SEC will not accept such a filing. The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. Notwithstanding the foregoing, to the extent the
Company files the information and reports referred to in clauses (1) through (4) above with the SEC
and such information is publicly available on the Internet, the Company shall be deemed to be in
compliance with its obligations to furnish such information to the Holders of the Notes. If,
notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the
Company will post the reports referred to in the
42
preceding paragraph on its website within the time periods that would apply if the Company
were required to file those reports with the SEC.
(c) In addition, the Company shall furnish to the Trustee and the Holders, upon their request,
copies of the annual report to shareholders and any other information provided by the Company to
its public shareholders generally.
SECTION 4.04. Compliance Certificate.
(a) The Company and each Subsidiary Guarantor shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the Company or such
Subsidiary Guarantor has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge the Company or such Subsidiary Guarantor has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Notes is prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. For the purposes of this
paragraph, such compliance shall be determined without regard to any grace period or requirement of
notice provided under this Indenture. The Company shall also comply with TIA Section 314(a)(4).
(b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith and in any event within 30 days upon any Officer becoming aware of any Default or Event
of Default or an event which, with notice or the lapse of time or both, would constitute an Event
of Default, an Officers’ Certificate specifying such Default or Event of Default and what action
the Company is taking or proposes to take with respect thereto.
SECTION 4.05. Restricted Payments.
(a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries
to, directly or indirectly:
(1) declare or pay any dividend, make any distribution on or in respect of its Capital
Stock or make any similar payment (including any payment in connection with any merger or
consolidation involving the Company or any Restricted Subsidiary) to the direct or indirect
holders of its Capital Stock in their capacity as such, except (A) dividends or
distributions payable solely in its Capital Stock (other than Disqualified Stock or, in the
case of a Restricted Subsidiary, Preferred Stock) and (B) dividends or distributions payable
to the Company or a Restricted Subsidiary (and, if such Restricted Subsidiary has Capital
Stock held by Persons other than the Company or other Restricted Subsidiaries, to such other
Persons on no more than a pro rata basis);
(2) purchase, repurchase, redeem, retire or otherwise acquire (“Purchase”) for value
any Capital Stock of the Company held by any Person (other than Capital Stock held by the
Company or a Restricted Subsidiary) or any Capital Stock of a Restricted Subsidiary held by
an
43
affiliate of the Company (other than by a Restricted Subsidiary) (other than in
exchange for Capital Stock of the Company that is not Disqualified Stock); or
(3) purchase for value, prior to scheduled maturity, any scheduled repayment or any
scheduled sinking fund payment, any Subordinated Obligations (other than the Purchase for
value of Subordinated Obligations acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one year of the
date of such Purchase)
(any such dividend, distribution, payment or Purchase being referred to as a “Restricted Payment”),
if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:
(A) a Default shall have occurred and be continuing (or would result therefrom);
(B) the Company could not Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.07(a); or
(C) the aggregate amount of such Restricted Payment and all other Restricted Payments
(the amount so expended, if other than in cash, to be determined in good faith by a
Financial Officer of the Company, whose determination will be conclusive; provided, however,
that with respect to any non-cash Restricted Payment in excess of $25.0 million, the amount
so expended shall be determined in accordance with the provisions of the definition of Fair
Market Value) declared or made subsequent to the Issue Date would exceed the sum, without
duplication, of:
(i) 50% of the Consolidated Net Income accrued during the period (treated as
one accounting period) from the beginning of the fiscal quarter immediately
following the fiscal quarter during which the Issue Date occurs to the end of the
most recent fiscal quarter for which financial statements are available prior to the
date of such Restricted Payment (or, in case such Consolidated Net Income will be a
deficit, minus 100% of such deficit); plus
(ii) 100% of the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to
the Issue Date (other than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees) and 100% of any cash capital contribution received by the Company from
its shareholders subsequent to the Issue Date; plus
(iii) the amount by which Indebtedness of the Company or its Restricted
Subsidiaries is reduced on the Company’s Consolidated balance sheet upon the
conversion or exchange (other than by a Subsidiary of the Company) subsequent to the
Issue Date of any Indebtedness of the Company or its Restricted Subsidiaries issued
after the Issue Date which is convertible or exchangeable for Capital Stock (other
than Disqualified Stock) of the Company (less the amount of any cash or the Fair
Market Value of other property distributed by the Company or any Restricted
Subsidiary upon such conversion or exchange).
(b) Notwithstanding the foregoing, the provisions set forth in Section 4.05(a) shall not
prohibit:
44
(1) any Restricted Payment made out of the Net Cash Proceeds of the substantially
concurrent sale of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the
Company or an employee stock ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees to the extent such sale to such an
employee stock ownership plan or trust is financed by loans from or guaranteed by the
Company or any Restricted Subsidiary unless such loans have been repaid with cash on or
prior to the date of determination) or a substantially concurrent cash capital contribution
received by the Company from its shareholders; provided, however, that:
(A) such Restricted Payment shall be excluded in the calculation of the amount
of Restricted Payments, and
(B) the Net Cash Proceeds from such sale applied in the manner set forth in
this clause (1) shall be excluded from the calculation of amounts under clause
(C)(ii) of paragraph (a) above;
(2) any prepayment, repayment or Purchase for value of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially concurrent sale
of, other Subordinated Obligations; provided, however, that such prepayment, repayment or
Purchase for value shall be excluded in the calculation of the amount of Restricted
Payments;
(3) dividends paid within 60 days after the date of declaration thereof if at such date
of declaration such dividends would have complied with this covenant; provided, however,
that such dividends shall be included in the calculation of the amount of Restricted
Payments;
(4) any Purchase for value of Capital Stock of the Company or any of its Subsidiaries
from employees, former employees, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former employees, directors or
former directors), pursuant to the terms of agreements (including employment agreements) or
plans (or amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or sell, shares of such
Capital Stock; provided, however, that the aggregate amount of such Purchases for value will
not exceed $20.0 million in any calendar year; provided further, however, that any of the
$20.0 million permitted to be applied for Purchases under this clause (4) in a calendar year
(and not so applied) may be carried forward for use in the following two calendar years;
provided further, however, that such Purchases for value shall be excluded in the
calculation of the amount of Restricted Payments;
(5) so long as no Default has occurred and is continuing, payments of dividends on
Disqualified Stock issued after the Issue Date pursuant to Section 4.07; provided, however,
that such dividends shall be included in the calculation of the amount of Restricted
Payments;
(6) repurchases of Capital Stock deemed to occur upon exercise of stock options if such
Capital Stock represents a portion of the exercise price of such options; provided, however,
that such Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments;
(7) so long as no Default has occurred and is continuing, any prepayment, repayment or
Purchase for value of Subordinated Obligations from Net Available Cash to the extent
permitted under the covenant described under Section 4.08; provided, however, that such
45
prepayment, repayment or Purchase for value shall be excluded in the calculation of the
amount of Restricted Payments;
(8) payments to holders of Capital Stock (or to the holders of Indebtedness that is
convertible into or exchangeable for Capital Stock upon such conversion or exchange) in lieu
of the issuance of fractional shares; provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments;
(9) Restricted Payments if, at the time of making such payments, and after giving
effect thereto (including, without limitation, the Incurrence of any Indebtedness to finance
such payment), the Total Leverage Ratio would not exceed 3.75 to 1.00; provided, however,
that at the time of each such Restricted Payment, no Default shall have occurred and be
continuing (or result therefrom); and provided further, however, that such amounts shall be
included in the calculation of the amount of Restricted Payments; or
(10) any Restricted Payment in an amount which, when taken together with all Restricted
Payments made after the Issue Date pursuant to this clause (10), does not exceed $500.0
million; provided, however, that (A) at the time of each such Restricted Payment, no Default
shall have occurred and be continuing (or result therefrom) and (B) such Restricted Payments
shall be excluded in the calculation of the amount of Restricted Payments.
SECTION 4.06. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
create or otherwise cause or permit to exist or become effective any contractual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock;
(2) pay any Indebtedness or other obligations owed to the Company;
(3) make any loans or advances to the Company; or
(4) transfer any of its property or assets to the Company,
except, with respect to clauses (1), (2), (3) and (4), for such encumbrances or restrictions
existing under or by reason of:
(A) any encumbrance or restriction pursuant to (i) applicable law, rule, regulation or
order or (ii) an agreement in effect at or entered into on the Issue Date;
(B) any encumbrance or restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to
the date on which such Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any
portion of the funds or credit support utilized to consummate the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by the Company) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of
Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of this
46
covenant or this clause (C) or contained in any amendment to an agreement referred to
in clause (A) or (B) of this covenant or this clause (C); provided, however, that the
encumbrances and restrictions contained in any such Refinancing agreement or amendment are
no less favorable in any material respect to the Holders than the encumbrances and
restrictions contained in such predecessor agreements;
(D) any encumbrance or restriction pursuant to an agreement with respect to
Indebtedness incurred in reliance on Section 4.07(b)(1);
(E) in the case of clause (4), any encumbrance or restriction:
(i) that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license or similar
contract, or the assignment or transfer of any such lease, license or other
contract; or
(ii) contained in mortgages, pledges and other security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the property subject to such security
agreements;
(F) with respect to a Restricted Subsidiary, any restriction imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all the Capital
Stock or assets of such Restricted Subsidiary pending the closing of such sale or
disposition;
(G) any encumbrance or restriction existing under or by reason of Indebtedness or other
contractual requirements of a Receivables Entity in connection with a Qualified Receivables
Transaction or the Company with respect to Standard Securitization Undertakings in
connection with a Qualified Receivables Transaction;
(H) purchase money obligations for property acquired in the ordinary course of business
and Capitalized Lease Obligations that impose restrictions on the property purchased or
leased of the nature described in clause (4) above;
(I) provisions with respect to the disposition or distribution of assets or property in
or with respect to joint venture agreements, asset sale agreements, stock sale agreements
and other similar agreements;
(J) restrictions on cash or other deposits or net worth imposed by customers, lenders,
suppliers or, in the ordinary course of business, other third parties or by Liens permitted
pursuant to clause (22) of the definition of “Permitted Liens”; and
(K) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in
the terms of any Indebtedness, or any agreement pursuant to which such Indebtedness was
issued or any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive (as determined by the Company in good faith) in any
material respect than those contained in such agreements or instruments in effect on the
Issue Date.
SECTION 4.07. Limitation on Indebtedness.
47
(a) The Company will not, and will not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any Subsidiary Guarantor may
Incur Indebtedness if on the date of such Incurrence and after giving effect thereto and the
application of the proceeds therefrom the Consolidated Interest Coverage Ratio would be greater
than 2.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries
may Incur the following Indebtedness:
(1) Indebtedness under Credit Facilities in an aggregate principal amount not to exceed
the greater of (A) $1,275.0 million, less the aggregate amount of all prepayments of
principal applied to permanently reduce any such Indebtedness in satisfaction of the
Company’s obligations under Section 4.08; and (B) the sum of (i) 60% of the book value of
the inventory of the Company and its Restricted Subsidiaries plus (ii) 80% of the book value
of the accounts receivable of the Company and its Restricted Subsidiaries (other than any
accounts receivable pledged, sold or otherwise transferred or encumbered by the Company or
any Restricted Subsidiary in connection with a Qualified Receivables Transaction), in each
case, as of the end of the most recent fiscal quarter for which financial statements are
available;
(2) Indebtedness of the Company owed to and held by any Restricted Subsidiary or
Indebtedness of a Restricted Subsidiary owed to and held by the Company or any Restricted
Subsidiary; provided, however, that any subsequent event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Restricted Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Indebtedness by the issuer thereof;
(3) Indebtedness (A) represented by the notes (not including any Additional Notes) and
the Subsidiary Guarantees, (B) outstanding on the Issue Date (other than the Indebtedness
described in clauses (1) and (2) above) and (C) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness
that is Refinancing Indebtedness) or the foregoing paragraph (a);
(4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to
the date on which such Restricted Subsidiary was acquired by the Company or a Restricted
Subsidiary (other than Indebtedness Incurred in contemplation of, in connection with, as
consideration in, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company);
provided, however, that on the date that such Restricted Subsidiary is acquired by the
Company, (i) the Company would have been able to Incur $1.00 of additional Indebtedness
pursuant to the foregoing paragraph (a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (4) or (ii) the Consolidated Interest Coverage Ratio
immediately after giving effect to such Incurrence and acquisition would be equal to or
greater than such ratio immediately prior to such transaction and (B) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by such
Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness in respect of (A) performance bonds, bankers’ acceptances, letters of
credit, bank guarantees and surety or appeal bonds entered into by the Company or any
Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations
entered into in the ordinary course of business to hedge risks with respect to the Company’s
or a Restricted Subsidiary’s interest rate, currency or raw materials pricing exposure or in
connection with the issuance of convertible debt and not entered into for speculative
purposes;
48
(6) Purchase Money Indebtedness, Capitalized Lease Obligations and Attributable Debt
and Refinancing Indebtedness in respect thereof in an aggregate principal amount on the date
of Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause
(6) and then outstanding, will not exceed the greater of (A) $300.0 million and (B) 5.0% of
Consolidated Total Assets of the Company as of the end of the most recent fiscal quarter for
which financial statements are available;
(7) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables
Transaction;
(8) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business; provided, however, that such Indebtedness is extinguished within five Business
Days of a Financial Officer’s becoming aware of its Incurrence;
(9) any Guarantee by the Company or a Restricted Subsidiary of Indebtedness or other
obligations of the Company or any of its Restricted Subsidiaries so long as the Incurrence
of such Indebtedness or other obligations by the Company or such Restricted Subsidiary is
permitted under the terms of this Indenture (other than Indebtedness Incurred pursuant to
clause (4) above);
(10) Indebtedness incurred by Foreign Subsidiaries pursuant to working capital lines of
credit or any overdraft line or other cash management system in the ordinary course of
business;
(11) Indebtedness owed by the Company or a Restricted Subsidiary to a joint venture or
similar entity in an amount not to exceed $50.0 million at any time; provided, however, that
the Company or a Restricted Subsidiary owns, through securities or otherwise, at least 25%
of the voting or economic interests of the joint venture or similar entity;
(12) Indebtedness of the Company or a Restricted Subsidiary in an amount not to exceed
$50.0 million Incurred in contemplation of, in connection with, as consideration in, or to
provide all or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such Restricted Subsidiary
became a Subsidiary of or was otherwise acquired by the Company whether by means of the
acquisition of assets or the Capital Stock of such entity; provided, however, that on the
date that such Restricted Subsidiary is acquired by the Company, (i) the Company would have
been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a)
after giving effect to the Incurrence of such Indebtedness pursuant to this clause (12) or
(ii) the Consolidated Interest Coverage Ratio immediately after giving effect to such
Incurrence and acquisition would be equal to or greater than such ratio immediately prior to
such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in
respect of Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (12);
(13) Indebtedness of a Foreign Subsidiary in an aggregate principal amount not to
exceed $150.0 million at any time;
(14) Indebtedness under tax-favored or government-sponsored financing transactions;
provided that (i) such Indebtedness is not senior in right of payment to the notes and (ii)
the aggregate principal amount of such Indebtedness shall not exceed $75.0 million at any
time; and
49
(15) Indebtedness of the Company and the Restricted Subsidiaries in an aggregate
principal amount on the date of Incurrence that, when added to all other Indebtedness
Incurred pursuant to this clause (15) and then outstanding, will not exceed the greater of
(A) $500.0 million and (B) 8.0% of Consolidated Total Assets.
(c) For purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this covenant:
(1) Outstanding Indebtedness Incurred pursuant to the Credit Agreement prior to or on
the Issue Date shall be deemed to have been Incurred pursuant to clause (1) of paragraph (b)
above;
(2) Indebtedness permitted by this covenant need not be permitted solely by reference
to one provision permitting such Indebtedness but may be permitted in part by one such
provision and in part by one or more other provisions of this covenant permitting such
Indebtedness; and
(3) in the event that Indebtedness meets the criteria of more than one of the types of
Indebtedness described in this covenant, the Company, in its sole discretion, shall classify
such Indebtedness (or any portion thereof) as of the time of Incurrence and will only be
required to include the amount of such Indebtedness in one of such clauses (provided that
any Indebtedness originally classified as Incurred pursuant to clauses (b)(2) through
(b)(15) above may later be reclassified as having been Incurred pursuant to paragraph (a) or
any other of clauses (b)(2) through (b)(15) above to the extent that such reclassified
Indebtedness could be Incurred pursuant to paragraph (a) or one of clauses (b)(2) through
(b)(15) above, as the case may be, if it were Incurred at the time of such
reclassification).
(d) For purposes of determining compliance with any U.S. dollar denominated restriction on the
Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency,
the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the
Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a
different currency is subject to a Currency Agreement with respect to U.S. dollars covering all
principal, premium, if any, and interest payable on such Indebtedness, the amount of such
Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The
principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness
being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced determined on
the date of the Incurrence of such Indebtedness, except to the extent that (1) such U.S. Dollar
Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness
will be determined in accordance with the immediately preceding sentence, and (2) the principal
amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being
Refinanced, in which case the U.S. Dollar Equivalent of such excess, as appropriate, will be
determined on the date such Refinancing Indebtedness is Incurred. Notwithstanding the foregoing,
the maximum amount of Indebtedness that may be incurred pursuant to this covenant shall not be
deemed to be exceeded with respect to any outstanding Indebtedness due solely to the fluctuations
in the exchange rates of currencies.
SECTION 4.08. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset
Disposition unless:
50
(1) the Company or such Restricted Subsidiary receives consideration (including by way
of relief from, or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or Additional Assets, and;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or such Restricted Subsidiary, as the case may be):
(A) first, to the extent the Company elects (or is required by the terms of any
applicable Indebtedness), to prepay, repay, purchase, repurchase, redeem, retire, defease or
otherwise acquire for value Senior Indebtedness of the Company or a Subsidiary Guarantor or
Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, other than
Indebtedness owed to the Company or an Affiliate of the Company and other than obligations
in respect of Disqualified Stock, within 365 days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash;
(B) second, to acquire Additional Assets (or otherwise to make capital expenditures),
in each case within 365 days after the later of the date of such Asset Disposition or the
receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net Available Cash after application in
accordance with clauses (A) and (B), to make an Asset Sale Offer (as defined in paragraph
(c) of this covenant below) to purchase notes pursuant to and subject to the conditions set
forth in paragraph (c) of this covenant; provided, however, that if the Company elects (or
is required by the terms of any other Senior Indebtedness), such Asset Sale Offer may be
made ratably to purchase the notes and any Senior Indebtedness of the Company; and
(D) fourth, to the extent of the balance of such Net Available Cash after application
in accordance with clauses (A), (B) and (C), for any general corporate purpose permitted by
the terms of this Indenture;
provided, however, that in connection with any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of Indebtedness pursuant
to clause (A) or (C) above, the Company or such Restricted Subsidiary will retire such
Indebtedness and will cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid, purchased, repurchased,
redeemed, retired, defeased or otherwise acquired for value.
Notwithstanding the foregoing provisions of this paragraph (3), the Company and its
Restricted Subsidiaries will not be required to apply any Net Available Cash in accordance
with this covenant except to the extent that the aggregate Net Available Cash from all Asset
Dispositions that is not applied in accordance with this covenant exceeds $25.0 million.
Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash
may be used or invested in any manner that is not prohibited by this Indenture.
(b) For purposes of this Section 4.08, the following are deemed to be cash:
(1) the assumption of Indebtedness or other obligations of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary
(other
51
than obligations in respect of Disqualified Stock and Preferred Stock of a Restricted
Subsidiary that is a Subsidiary Guarantor) and the release of the Company or such Restricted
Subsidiary from all liability on such Indebtedness or obligations in connection with such
Asset Disposition;
(2) any Designated Non-Cash Consideration having an aggregate Fair Market Value that,
when taken together with all other Designated Non-Cash Consideration received pursuant to
this clause and then outstanding, does not exceed at the time of the receipt of such
Designated Non-Cash Consideration (with the Fair Market Value of each item of Designated
Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value) the greater of (1) $200.0 million and (2) 3.0% of the
Consolidated Total Assets of the Company as shown on the most recent balance sheet of the
Company filed with the SEC;
(3) securities, notes or similar obligations received by the Company or any Restricted
Subsidiary from the transferee that are promptly converted by the Company or such Restricted
Subsidiary into cash;
(4) Temporary Cash Investments.
(c) In the event of an Asset Disposition that requires the purchase of notes pursuant to
clause (a)(3)(C) of this Section 4.08, the Company will be required:
(1) to purchase notes tendered pursuant to an offer by the Company for the notes (the
“Asset Sale Offer”) at a purchase price of 100% of their principal amount plus accrued and
unpaid interest to the date of purchase (subject to the right of Holders of record on the
relevant date to receive interest due on the relevant Interest Payment Date) in accordance
with the procedures (including prorating in the event of oversubscription), set forth in
this Indenture; and
(2) to purchase other Senior Indebtedness of the Company on the terms and to the extent
contemplated thereby; provided that in no event shall the Company offer to purchase such
Senior Indebtedness of the Company at a purchase price in excess of 100% of its principal
amount (without premium) or, unless otherwise provided for in such Senior Indebtedness, the
accreted amount, if issued with original issue discount, plus accrued and unpaid interest
thereon.
If the aggregate purchase price of notes (and Senior Indebtedness) tendered pursuant to the
Asset Sale Offer is less than the Net Available Cash allotted to the purchase of the notes
(and other Senior Indebtedness), the Company will apply the remaining Net Available Cash in
accordance with clause (a)(3)(D) of this covenant. The Company will not be required to make
an Asset Sale Offer for notes (and Senior Indebtedness) pursuant to this covenant if the Net
Available Cash available therefor (after application of the proceeds as provided in clauses
(a)(3)(A) and (B)) is less than $25.0 million for any particular Asset Disposition (which
lesser amount will be carried forward for purposes of determining whether an Asset Sale
Offer is required with respect to the Net Available Cash from any subsequent Asset
Disposition).
(d) The Company shall, not later than 45 days after the Company becomes obligated to make an
Asset Sale Offer pursuant to this Section 4.08, mail a notice to each Holder with a copy to the
Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the
Notes has occurred and that such Holder has the right (subject to the prorating described below) to
require the Company to purchase a portion of such Holder’s Notes at a purchase price in cash equal
to 100% of the aggregate principal amount thereof on the purchase date, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of Holders of record on a record
date to receive interest on the relevant Interest Payment Date); (2) the repurchase date (which
shall be no earlier than 30 days nor later than 60
52
days from the date such notice is mailed); (3) the instructions determined by the Company,
consistent with this Section 4.08, that a Holder must follow in order to have its Notes purchased;
and (4) the amount of the Asset Sale Offer. If, upon the expiration of the period for which the
Asset Sale Offer remains open, the aggregate principal amount of Notes surrendered by Holders
exceeds the amount of the Asset Sale Offer, the Company shall select the Notes to be purchased on a
pro rata basis.
(e) The Company will comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of notes pursuant to this covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this
covenant by virtue thereof.
SECTION 4.09. Affiliate Transactions.
(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction or series of related transactions (including the
purchase, sale, lease or exchange of any property or the rendering of any service) with any
Affiliate of the Company (an “Affiliate Transaction”) unless such transaction is on terms:
(1) that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such transaction in arm’s
length dealings with a Person who is not such an Affiliate;
(2) that, in the event such Affiliate Transaction involves an aggregate amount in
excess of $25.0 million;
(A) are set forth in writing; and
(B) have been approved by a majority of the members of the Board of Directors who are
disinterested directors as to such Affiliate Transaction;
(3) that, in the event such Affiliate Transaction involves an amount in excess of
$150.0 million, have been determined by a nationally recognized appraisal, accounting or
investment banking firm to be fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries.
(b) The restrictions set forth in Section 4.09(a) hereof shall not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to Section 4.05;
(2) any issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans approved by the Board of Directors;
(3) the grant of stock options or similar rights to employees and directors of the
Company pursuant to plans approved by the Board of Directors;
(4) loans or advances to employees in the ordinary course of business of the Company in
an aggregate amount not to exceed $5 million at any one time outstanding;
53
(5) the payment of reasonable fees and compensation to, or the provision of employee
benefit arrangements and indemnity for the benefit of, directors, officers and employees of
the Company and its Restricted Subsidiaries in the ordinary course of business;
(6) any transaction between or among any of the Company, any Restricted Subsidiary or
any joint venture or similar entity which would constitute an Affiliate Transaction solely
because the Company or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity;
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company;
(8) any agreement as in effect on the Issue Date and listed on a schedule to this
Indenture, or any renewals, extensions or amendments of any such agreement (so long as such
renewals, extensions or amendments are not less favorable in any material respect to the
Company or its Restricted Subsidiaries) and the transactions evidenced thereby;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods
or services in each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture which are fair to the Company or its Restricted Subsidiaries, in
the reasonable determination of the Board of Directors or the senior management thereof, or
are on terms at least as favorable as might reasonably have been obtained at such time from
an unaffiliated party; or
(10) any transaction effected as part of a Qualified Receivables Transaction.
SECTION 4.10. Liens.
The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, Incur or permit to exist any Lien (the “Initial Lien”) of any nature whatsoever on any
of its property or assets (including Capital Stock of a Restricted Subsidiary), whether owned at
the Issue Date or thereafter acquired, which Initial Lien secures any Indebtedness, other than
Permitted Liens, without effectively providing that the notes shall be secured equally and ratably
with (or prior to) the obligations so secured for so long as such obligations are so secured. Any
Lien created for the benefit of the Holders of the notes pursuant to the preceding sentence shall
provide by its terms that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien.
SECTION 4.11. Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Holder shall have the right to require the Company to
purchase all or any part of such Holder’s Notes pursuant to the offer described below (the “Change
of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued
and unpaid interest to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant Interest Payment Date). Within 30 days
following the date upon which the Change of Control occurred, the Company must send, by first class
mail, a notice to the Trustee and each Holder, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state, among other things, the purchase date, which must be no
earlier than 30 days nor later than 60 days from the date such notice is mailed, other than as may
be required by law (the “Change of Control Payment Date”). Holders electing to have a Note
purchased pursuant to a Change of Control Offer shall be required to surrender the Note, with the
form entitled “Option of Holder to Elect Purchase” on the
54
reverse of the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Change of Control Payment
Date.
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver or cause to be delivered to
the applicable Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for
such Notes, and the Trustee shall promptly authenticate and mail or deliver (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a principal
amount of $2,000 or an integral multiple of $1,000 thereafter. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act to the
extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant
to a Change of Control Offer. To the extent that the Company complies with the provisions of any
such securities laws or regulations, the Company shall not be deemed to have breached its
obligations under this Section 4.11.
(d) Notwithstanding anything to the contrary in this Section 4.11, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.11 hereof and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. In addition, the Company will not be required to
make a Change of Control Offer upon a Change of Control if the Notes have been or are called for
redemption by the Company prior to it being required to mail notice of the Change of Control Offer,
and thereafter redeems all Notes called for redemption in accordance with the terms set forth in
such redemption notice.
(e) A change of Control Offer may be made in advance of a change of Control, and conditioned
upon, the consummation of such Change of Control, if a definitive agreement is in place for the
Change of Control at the time the Change of Control Offer is made.
SECTION 4.12. Corporate Existence
Except as otherwise permitted by Article 5 hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.
SECTION 4.13. Additional Subsidiary Guarantors.
The Company will cause each new Domestic Subsidiary that is a Guarantor of (i) the Credit
Agreement; (ii) any Credit Facilities incurred in reliance on Section 4.07(b)(1); or (iii) any
single issuance of capital markets indebtedness incurred under paragraph (a) or clause (b)(15) of
Section 4.07 in an aggregate principal amount equal to or greater than $200.0 million (“Material
Capital Markets Indebtedness,” and together with the Indebtedness described in clauses (i) and
(ii), “Material Indebtedness”) to execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiary will Guarantee payment of the notes. In addition, the Company
will cause each Foreign Subsidiary that becomes a Guarantor of any Material Indebtedness of the
Company or a Domestic Subsidiary to execute and deliver to the Trustee a supplemental indenture
pursuant to which such
55
Subsidiary will Guarantee payment of the notes. Each Subsidiary Guarantee will be limited to
an amount not to exceed the maximum amount that can be Guaranteed by that Subsidiary Guarantor
without rendering the Subsidiary Guarantee, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 4.14. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction with respect to any property unless:
(A) the Company or such Restricted Subsidiary would be entitled to:
(i) Incur Indebtedness with respect to such Sale and Leaseback Transaction pursuant to
Section 4.07; and
(ii) create a Lien on such property securing such Indebtedness without equally and
ratably securing the notes pursuant to Section 4.10;
(B) the gross proceeds payable to the Company or such Restricted Subsidiary in
connection with such Sale and Leaseback Transaction are at least equal to the Fair Market
Value of such property; and
(C) the transfer of such property is permitted by, and, if applicable, the Company
applies the proceeds of such transaction in compliance with Section 4.08.
SECTION 4.15. Suspension of Covenants.
(a) Following the first day (the “Suspension Date”) that (i) the Notes have an Investment
Grade Rating from both of the Rating Agencies, and (ii) no Default has occurred and is continuing
under this Indenture, the Company and its Restricted Subsidiaries shall not be subject to the
following provisions of this Indenture:
(1) Section 4.05;
(2) Section 4.06;
(3) Section 4.07;
(4) Section 4.08;
(5) Section 4.09;
(6) Section 4.13;
(7) clause (a) (3) of Section 5.01;
(collectively, the “Suspended Covenants”).
In addition, the Company may elect to suspend the Subsidiary Guarantees. In the event that the
Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period
of time as a result of the foregoing and on any subsequent date (the “Reversion Date”) one or both
of the Rating
56
Agencies withdraws its Investment Grade Rating or downgrades the rating assigned to the notes below
an Investment Grade Rating, then the Company and its Restricted Subsidiaries will thereafter again
be subject to the Suspended Covenants with respect to future events and the Subsidiary Guarantees
will be reinstated to the extent required by this Indenture. The period of time between the
Suspension Date and the Reversion Date is referred to in this description as the “Suspension
Period.” Notwithstanding that the Suspended Covenants may be reinstated, no default will be deemed
to have occurred as a result of a failure to comply with the Suspended Covenants during the
Suspension Period. During any Suspension Period, the Company may not designate any Subsidiary to
be an Unrestricted Subsidiary unless the Company would have been permitted to designate such
Subsidiary to be an Unrestricted Subsidiary if a Suspension Period had not been in effect for any
period.
(b) On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be
classified to have been Incurred pursuant to Section 4.07(a) or one of the clauses set forth in
Section 4.07 (b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as
of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension
Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so
permitted to be Incurred pursuant to paragraph (a) or (b) of Section 4.07, such Indebtedness will
be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under
Section 4.07(b)(3)(B). Calculations made after the Reversion Date of the amount available to be
made as Restricted Payments under Section 4.05 will be made as though Section 4.05 had been in
effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments
made during the Suspension Period will reduce the amount available to be made as Restricted
Payments under Section 4.05(a) and the items specified in subclause (C) of paragraph (a) of Section
4.05 will increase the amount available to be made under paragraph (a) thereof. For purposes of
determining compliance with paragraphs (a) and (b) of Section 4.08, the Net Available Cash from all
Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero
after the Reversion Date.
(c) In addition, if it would not cause a Default or Event of Default, the Company and the
Restricted Subsidiaries may honor any contractual commitments to take actions in the future after
any date on which the Notes no longer have an Investment Grade Rating from both of the Rating
Agencies as long as such contractual commitments were entered into during a Suspension Period and
not in anticipation of the Notes no longer having an Investment Grade Rating from both of the
Rating Agencies.
ARTICLE 5
SUCCESSORS
SUCCESSORS
To the extent that any provisions of this Article 5 are duplicative or conflict with any
provision of the Base Indenture, this Article 5 shall govern and be controlling solely with respect
to the Notes.
SECTION 5.01. Merger, Consolidation, or Sale of Assets.
(a) The Company will not, directly or indirectly, consolidate with or merge with or into, or
convey, transfer or lease all or substantially all its assets in one or a series of related
transactions to, any Person, unless:
(1) the resulting, surviving or transferee Person (the “Successor Company”) will be a
corporation organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Company) will
expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under the notes and
this Indenture;
57
(2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Company or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and
be continuing;
(3) immediately after giving effect to such transaction, (A) the Successor Company
would be able to Incur an additional $1.00 of Indebtedness under Section 4.07(a) or (B) the
Consolidated Interest Coverage Ratio for the Successor Company would be equal to or greater
than such ratio for the Company and its Restricted Subsidiaries immediately prior to such
transaction; and
(4) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
(b) In addition, the Company will not permit any Subsidiary Guarantor to, directly or
indirectly, consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets in one or a series of related transactions to, any Person, unless:
(1) except in the case of a Subsidiary Guarantor (i) that has been disposed of in its
entirety to another Person (other than to the Company or an Affiliate of the Company),
whether through a merger, consolidation or sale of Capital Stock or assets or (ii) that, as
a result of the disposition of all or a portion of its Capital Stock, ceases to be a
Subsidiary, the resulting, surviving or transferee Person (the “Successor Guarantor”) will
be a corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not such Subsidiary
Guarantor) will expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee;
(2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Guarantor or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Guarantor or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and
be continuing;
(3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
(c) Notwithstanding the foregoing:
(1) any Restricted Subsidiary may Consolidate with, merge into or transfer all or part
of its properties and assets to the Company or any Subsidiary Guarantor and;
(2) the Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction within the United States of America, any
state thereof or the District of Columbia to realize tax or other benefits.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, merger or any transfer of all or substantially all of the assets of
the Company in accordance with Section 5.01 hereof, in which the Company is not the continuing
58
corporation, the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of the Company under this Indenture and the Notes with
the same effect as if such surviving entity had been named as such and that, in the event of a
conveyance or transfer (but not a lease), the conveyor or transferor (but not a lessor) shall be
released from the provisions of this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
DEFAULTS AND REMEDIES
To the extent that any provisions of this Article 6 are duplicative or conflict with any
provision of the Base Indenture, this Article 6 shall govern and be controlling solely with respect
to the Notes.
SECTION 6.01. Events of Default.
Each of the following is an “Event of Default” with respect to each series of Notes:
(a) a default in any payment of interest on the Notes of such series when due and payable and
such default continues for a period of 30 days;
(b) a default in the payment of principal of any Notes of such series when due and payable, at
Stated Maturity, upon optional redemption or required repurchase, upon declaration of acceleration
or otherwise;
(c) the failure by the Company or any Subsidiary Guarantor to comply with its obligations
under Section 5.01 above;
(d) the failure by the Company or any Restricted Subsidiary to comply with any of its
obligations under Section 4.11 or Sections 4.05 to 4.10, Sections 4.13 and 4.14 for 30 days after
the Company receives written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes;
(e) the failure by the Company or any Restricted Subsidiary to comply with its other
agreements contained in this Indenture for 60 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Notes;
(f) the failure by the Company or any Restricted Subsidiary to pay any Indebtedness (other
than Indebtedness owing to the Company or a Restricted Subsidiary) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the holders thereof
because of a default if the total amount of such Indebtedness unpaid or accelerated exceeds $100.0
million or its foreign currency equivalent;
(g) the rendering of any final and nonappealable judgment or decree (not covered by insurance)
for the payment of money in excess of $100.0 million or its foreign currency equivalent (treating
any deductibles, self-insurance or retention as not so covered) against the Company or a
Significant Subsidiary if such final judgment or decree remains outstanding and is not satisfied,
discharged or waived within a period of 60 days following such judgment;
(h) any Subsidiary Guarantee ceases to be in full force and effect in all material respects
(except as contemplated by the terms thereof) or any Subsidiary Guarantor denies or disaffirms such
59
Subsidiary Guarantor’s obligations under this Indenture or any Subsidiary Guarantee and such
Default continues for 10 days after receipt of the notice as specified in this Indenture;
(i) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary
within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary
case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors; or
(j) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary
in an involuntary case;
(ii) appoints a custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary, or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiaries or any group of Restricted
Securities that, taken together, would constitute a Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 consecutive days.
The foregoing will constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
However, a default under clauses (d), (e), (f), (g) or (h) (only with respect to any
Subsidiary Guarantor that is not a Significant Subsidiary) will not constitute an Event of Default
with respect to a series of Notes until the Trustee notifies the Company or the Holders of at least
25% in principal amount of the outstanding Notes of such series notify the Company and the Trustee
of the default and the Company, the Subsidiary Guarantor or the Restricted Subsidiary, as
applicable, does not cure such default within the time specified in clauses (d), (e), (f), (g) or
(h) hereof after receipt of such notice.
SECTION 6.02. Acceleration.
60
If an Event of Default (other than an Event of Default specified in clauses (i) or (j) of
Section 6.01 hereof with respect to the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes of any series may declare
the principal of and accrued interest on all the Notes of such series to be due and payable
immediately by notice in writing to the Company and the Trustee (if given by the Holders)
specifying the respective Event of Default and that it is a “notice of acceleration” (the
“Acceleration Notice”), and the same shall become immediately due and payable. If an Event of
Default specified in clause (i) or (j) of Section 6.01 hereof occurs and is continuing, then all
unpaid principal of, and premium, if any, and accrued and unpaid interest on all the outstanding
Notes shall ipso facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the Notes as described in the
preceding paragraph, the Holders of a majority in principal amount of the Notes of any series may
rescind and cancel such declaration with respect to the Notes of such series and its consequences
(i) if the rescission would not conflict with any judgment or decree, (ii) if all existing Events
of Default have been cured or waived except nonpayment of principal or interest that has become due
solely because of the acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid, (iv) if the Company has paid the Trustee
its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and
advances; and (v) in the event of the cure or waiver of an Event of Default of the type described
in clauses (i) or (j) of Section 6.01 hereof, the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding
even if it does not possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes of any series by notice to the Trustee may on behalf of the Holders of all of the Notes of
such series waive an existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of, premium and interest on
the Notes of such series (including in connection with an offer to purchase) (provided, however,
that the Holders of a majority in aggregate principal amount at maturity of the then outstanding
Notes of a series may rescind an acceleration with respect to such series and its consequences,
including any related payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes of any series may
direct the time, method and place of conducting any proceeding for exercising any remedy available
to the
61
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes of such series or that may involve the
Trustee in personal liability.
SECTION 6.06. Limitation on Suits.
A Holder of a Note of any series may pursue a remedy with respect to this Indenture or the
Notes of such series only if:
(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;
(b) the Holders of at least 25% in principal amount of the then outstanding Notes of
such series make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes of such series offer and, if requested,
provide to the Trustee reasonable indemnity to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes of such series do not give the Trustee a direction inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.
SECTION 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium on, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the
62
Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium,
if any, and interest, ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder of a Note pursuant to Section 6.06 hereof, or a suit by Holders
of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
TRUSTEE
To the extent that any provisions of this Article 7 are duplicative or conflict with any
provision of the Base Indenture, this Article 7 shall govern and be controlling solely with respect
to the Notes.
63
SECTION 7.01. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such
Person’s own affairs.
(b) Except during the continuance of a Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
64
SECTION 7.02. Rights of the Trustee.
Subject to TIA Section 315:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in any such document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its own selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture, provided that the Trustee’s conduct does not constitute willful misconduct or
negligence.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders shall
have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its reasonable discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall reasonably determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company during normal business hours and upon reasonable notice, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(h) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, and the Trustee shall not be
responsible for any willful misconduct or gross negligence on the part of any agent or attorney
appointed with due care by it under this Indenture.
(i) The Trustee shall not be required to give any bond or surety in respect of the performance
of its power and duties hereunder.
(j) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, Custodian and
other Person employed to act hereunder.
65
(k) The permissive right of the Trustee to take or refrain from taking any actions enumerated
in this Indenture shall not be construed as a duty.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military authority and
governmental action.
(m) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Company has been advised as to the likelihood of such
loss or damage and regardless of the form of action.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
shall also be subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
(a) The Trustee shall not be deemed to have notice of any Default with respect to Notes of any
series unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of 25% in
aggregate principal amount of the outstanding Notes of such series, and such notice references the
specific Default or Event of Default, the Notes of such series and this Indenture.
(b) If a Default occurs and is continuing and is known to the Trustee, the Trustee shall mail
to Holders of the Notes of the applicable series, notice of the Default within the earlier of 90
days after the occurrence of a Default or 30 days after it is actually known to a Trust Officer or
written notice of it is received by the Trustee, unless such Default shall have been cured or
waived. Except in the case of a Default in the payment of principal of, premium, if any, or
interest on any Note of any series (including payments pursuant to the redemption provisions of the
Notes of such series), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the interests of the
Holders of the Notes.
66
SECTION 7.06. Reports by Trustee to Holder.
Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA §313(a) (but if no event
described in TIA §313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA §313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA §313(c).
A copy of each report at the time of its mailing to the Holders shall be mailed to the Company
and filed with the SEC and each stock exchange on which the Notes are listed in accordance with TIA
§313(d). The Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange and any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company and the Subsidiary Guarantors shall pay to the Trustee from time to time such
reasonable compensation for its acceptance of this Indenture and services hereunder as the parties
shall agree from time to time. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and the Subsidiary Guarantors shall
reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.
The Company and the Subsidiary Guarantors shall, jointly and severally, indemnify the Trustee
against any and all losses, liabilities or expenses (including reasonable attorneys’ fees and
expenses) incurred by it arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including the costs and expenses of enforcing this Indenture
against the Company and the Subsidiary Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company and the Subsidiary Guarantors or any
Holder or any other person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the Company and the
Subsidiary Guarantors promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The
Company and the Subsidiary Guarantors need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld.
The obligations of the Company and the Subsidiary Guarantors under this Section 7.07 shall
survive the resignation or removal of the Trustee, the satisfaction and discharge and the
termination of this Indenture.
To secure the Company’s and the Subsidiary Guarantors’ payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the resignation or removal of the Trustee, the satisfaction and discharge and the
termination of this Indenture.
In addition, and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture, when the Trustee incurs expenses or renders services after an Event
of
67
Default specified in Section 6.01(f) or (g) hereof occurs, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under any Bankruptcy Law.
“Trustee” for purposes of this Section shall include any predecessor Trustee and the Trustee
in each of its capacities hereunder and each agent, custodian and other person employed to act
hereunder; provided, however, that the negligence, willful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee hereunder.
The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of Notes of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 7.10, such Holder of a Note may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 7.07
68
hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation or banking association, the successor
corporation or banking association without any further act shall, if such successor corporation or
banking association is otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a Person organized and doing business
under the laws of the United States of America or of any state thereof that is authorized under
such laws to exercise corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at least $100.0 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA §310(a)(1),
(2) and (5). The Trustee is subject to TIA §310(b).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA
§311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
To the extent that any provisions of this Article 8 are duplicative or conflict with any
provision of the Base Indenture, this Article 8 shall govern and be controlling solely with respect
to the Notes.
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof applied
to all outstanding Notes of any series upon compliance with the conditions set forth below in this
Article 8.
SECTION 8.02. Legal Defeasance and Discharge
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes of any series on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes of such series,
which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof
and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied
all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until
69
otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes
of such series to receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal amount of, premium, if any,
and interest on such Notes when such payments are due, (b) the Company’s obligations with respect
to such Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company’s obligations in connection therewith and (d)
the provisions of this Article 8 with respect to Legal Defeasance. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
SECTION 8.03. Covenant Defeasance.
Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and 4.14 hereof with respect to the outstanding
Notes of such series on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter, “Covenant Defeasance”), and the Notes of such series shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act
of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such
Notes of such series shall not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes of such series, the Company
may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes of such series shall be unaffected thereby. In addition,
upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03
hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(d) and 6.01(e) hereof shall not constitute Events of Default.
SECTION 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes of any series:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders, cash in United States dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, to pay the principal amount at maturity of, premium and interest on the outstanding Notes
of such series on the stated date for payment thereof or on the applicable redemption date, as the
case may be;
(b) in the case of an election under Section 8.02 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the
Trustee confirming that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change
in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of such series will not
recognize income, gain or loss for
70
Federal income tax purposes as a result of such Legal Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness all
or a portion of the proceeds of which will be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence and the grant of a Lien to secure such Indebtedness) or insofar
as Section 6.01 (i) or 6.01(h) hereof is concerned, at any time in the period ending on the 91st
day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under this Indenture (other than a Default or an Event of Default resulting
from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such
borrowing) or any other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of Counsel (which may be
subject to customary exceptions) to the effect that (A) the trust funds will not be subject to any
rights of holders of Senior Debt including, without limitation, those arising under this Indenture,
and (B) after the 91st day following the deposit, the trust funds will not be subject to the effect
of the preference provisions of Section 547 of the United States Federal Bankruptcy Code;
(g) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(h) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with; and
(i) the Company shall have paid or duly provided for payment of all amounts then due to the
Trustee pursuant to Section 7.07 hereof.
Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above with
respect to a Legal Defeasance need not be delivered if all Notes of such series not therefor
delivered to the Trustee for cancellation (A) have become due and payable, or (B) will become due
and payable on the maturity date within one year under arrangements satisfactory to the Trustee for
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company
SECTION 8.05. Deposited Money and U.S. Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.
71
All cash and non-callable U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes of any
series shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of the Notes of
such series of all sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such cash and securities need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to
Section 8.04 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes of
such series.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable U.S.
Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in
this Indenture) as to all outstanding Notes of any series when (i) either (a) all the Notes of such
series theretofore authenticated and delivered (except lost, stolen or destroyed Notes of such
series which have been replaced or paid and Notes of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all Notes of such series not theretofore delivered to the Trustee for
cancellation have become due and payable, pursuant to an optional redemption notice or otherwise,
and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes of such series not
theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and
interest on the Notes of such series to the date of deposit together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be; (ii) the Company has paid all other sums payable under this
Indenture by the Company; and (iii) the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied with.
SECTION 8.07. Repayment to Company.
Any cash or non-callable U.S. Government Obligations deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any,
or interest on, any Note and remaining unclaimed for two years after such principal, and premium,
if any, or interest has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as
an unsecured creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such cash and securities, and all liability of the
Company as trustee thereof, shall thereupon
72
cease; provided, however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such cash and securities remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash and securities then
remaining will be repaid to the Company.
SECTION 8.08. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or non-callable U.S. Government
Obligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until
such time as the Trustee or Paying Agent is permitted to apply all such cash and securities in
accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to
receive such payment from the cash and securities held by the Trustee or Paying Agent.
SECTION 8.09. Survival.
The Trustee’s rights under this Article 8 shall survive termination of this Indenture or the
resignation of the Trustee.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
AMENDMENT, SUPPLEMENT AND WAIVER
To the extent that any provisions of this Article 9 are duplicative or conflict with any
provision of the Base Indenture, this Article 9 shall govern and be controlling solely with respect
to the Notes.
SECTION 9.01. Without Consent of Holder.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture, the Subsidiary Guarantees or the Notes of any series without the consent
of any Holder of a Note of such series to:
(a) cure any ambiguity, omission, defect or inconsistency;
(b) provide for the assumption by a successor entity of the obligations of the Company or a
Subsidiary Guarantor under this Indenture;
(c) provide for uncertificated Notes in addition to or in place of certificated Notes
(provided, however, that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code);
(d) add additional Guarantees with respect to the notes or to confirm and evidence the
release, termination or discharge of any Guarantee when such release, termination or discharge is
permitted under this Indenture;
73
(e) add to the covenants of the Company for the benefit of the Holders of notes or to
surrender any right or power conferred upon the Company;
(f) make any change that does not adversely affect the rights of any Holder in any material
respect, subject to the provisions of this Indenture;
(g) make any amendment to the provisions of this Indenture relating to the form,
authentication, transfer and legending of notes; provided, however, that (A) compliance with this
Indenture as so amended would not result in notes being transferred in violation of the Securities
Act or any other applicable securities law and (B) such amendment does not materially affect the
rights of Holders to transfer notes;
(h) comply with any requirement of the SEC in connection with the qualification of this
Indenture under the TIA; or
(i) convey, transfer, assign, mortgage or pledge as security for the notes any property or
assets in accordance with Section 4.10.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company
and the Subsidiary Guarantors in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, this Indenture, the Subsidiary Guarantees and
the Notes of any series may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Notes of such series then outstanding voting as a single
class, and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes of such series, except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this Indenture, the Subsidiary Guarantees
or the Notes of such series may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes of such series voting as a single class.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
74
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of Notes of any series affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity of any such
amended or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders
of a majority in aggregate principal amount of the Notes then outstanding of a series voting as a
single class may waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes with respect to such series. However, without the consent of each
Holder affected, an amendment or waiver under this Section 9.02 may not (with respect to any Notes
of such series held by a non-consenting Holder):
(a) reduce the amount of Notes whose Holders must consent to an amendment, supplement or
waiver;
(b) reduce the rate of or extend the time for payment of interest, including defaulted
interest, on any Note;
(c) reduce the principal of or extend the Stated Maturity of any Note;
(d) reduce the premium payable upon the redemption of any Note or change the time at which any
Note may be redeemed as set forth in Sections 3.07 and 3.08;
(e) make any Notes payable in money other than that stated in the Notes;
(f) impair the right of any Holder of Notes to receive payment of principal of and interest on
such Note on or after the due dates therefore or to institute suit for the enforcement of such
payment on or with respect to such Holder’s Notes; or
(g) make any change in the amendment provisions which require each Holder’s consent or in the
waiver provisions;
(h) modify the Subsidiary Guarantees in any manner adverse to the Holders of the Notes.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended
or supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof
that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion thereof if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver shall
become effective in accordance with its terms and thereafter shall bind every Holder.
SECTION 9.05. Trustee to Sign Amendments.
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of
75
the Trustee. None of the Company nor any Subsidiary Guarantor may sign an amendment or
supplemental indenture until its board of directors (or committee serving a similar function)
approves it. In executing any amended or supplemental indenture, the Trustee shall be provided
with and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amended or supplemental
indenture is the legal, valid and binding obligations of the Company enforceable against it in
accordance with its terms, subject to customary exceptions and that such amended or supplemental
indenture complies with the provisions hereof (including Section 9.03).
ARTICLE 10
SUBSIDIARY GUARANTEES
SUBSIDIARY GUARANTEES
To the extent that any provisions of this Article 10 are duplicative or conflict with any
provision of the Base Indenture, this Article 10 shall govern and be controlling solely with
respect to the Notes.
SECTION 10.01. Subsidiary Guarantees.
Each Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of the Company under
this Indenture and the Notes and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Company under this Indenture and the Notes (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary
Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Subsidiary Guarantor and that such Subsidiary
Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any
Guaranteed Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each
Subsidiary Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
The obligations of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure of
any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against
the Company or any other Person under this Indenture, the Notes or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or
any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against
any other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in
the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder or the Trustee to any security
held for payment of the Guaranteed Obligations.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof,
of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
76
Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be
accelerated as provided in Article 6 for the purposes of such Subsidiary Guarantor’s Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under
this Section.
SECTION 10.02. Limitation on Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor
(a) not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
to the extent applicable to any Guarantee, and (b) not result in a distribution to shareholders not
permitted under the applicable state law. Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 10.03. Successors and Assigns.
This Article 10 shall be binding upon each Subsidiary Guarantor and its successors and assigns
and shall enure to the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Notes shall automatically extend
to and be vested in such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Article 10 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or benefits which either
may have under this Article 10 at law, in equity, by statute or otherwise.
SECTION 10.05. Release of Subsidiary Guarantor.
(a) Upon the sale (including any sale pursuant to any exercise of remedies by a holder of
Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition (including by way
of consolidation or merger) of a Subsidiary Guarantor; (b) upon the sale or disposition of all or
substantially all the assets of a Subsidiary Guarantor; (c) if a Subsidiary Guarantor no longer
guarantees or is otherwise obligated under (i) the Credit Agreement, (ii) Indebtedness under Credit
Facilities incurred in reliance on Section 4.07(b)(1) or (iii) any Material Capital Markets
Indebtedness; (d) upon designation of a Subsidiary Guarantor as an Unrestricted Subsidiary pursuant
to the terms of this Indenture; or (e) at the
77
Company’s election, during any Suspension Period, such Subsidiary Guarantor shall be deemed
released from all obligations under this Article 10 without any further action required on the part
of the Trustee or any Holder.
If the Company exercises its Legal Defeasance option or its Covenant Defeasance option in
accordance with the provisions of Article 8 hereof or if its obligations under this Indenture are
discharged in accordance with Section 8.06 hereof, each Subsidiary Guarantor shall be released from
all obligations under this Article 10 without any further action required on the part of the
Trustee or any Holder. At the request of the Company, the Trustee shall execute and deliver an
appropriate instrument evidencing the release of a Subsidiary Guarantor pursuant to this Section
10.05.
SECTION 10.06. Contribution.
Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee shall be
entitled upon payment in full of all Guaranteed Obligations to contribution from each Subsidiary
Guarantor, as applicable, in an amount equal to such Subsidiary Guarantor’s pro rata portion of
such payment based on the respective net assets of all the Subsidiary Guarantors at the time of
such payment determined in accordance with GAAP.
ARTICLE 11
MISCELLANEOUS
MISCELLANEOUS
To the extent that any provisions of this Article 11 are duplicative or conflict with any
provision of the Base Indenture, this Article 11 shall govern and be controlling solely with
respect to the Notes.
SECTION 11.01. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required by the TIA shall
control.
SECTION 11.02. Notices
Any notice or communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first class mail (registered or certified, return
receipt requested), facsimile or electronic transmission or overnight air courier guaranteeing
next-day delivery, to the other’s address:
If to the Company:
Lear Corporation
21557 Telegraph Road
Southfield, MI 48035
Facsimile: (248) 447-5126
Attention: General Counsel
21557 Telegraph Road
Southfield, MI 48035
Facsimile: (248) 447-5126
Attention: General Counsel
78
With a copy to:
Winston & Strawn LLP
35 West Wacker Drive
Chicago, Illinois 60601
Facsimile: (312) 558-5700
Attention: Bruce A. Toth
35 West Wacker Drive
Chicago, Illinois 60601
Facsimile: (312) 558-5700
Attention: Bruce A. Toth
79
If to the Trustee:
The Bank of New York Mellon Company, N.A.
2 North La Salle Street, Suite 1020
Chicago, Illinois 60602
Facsimile: (312) 827-8542
2 North La Salle Street, Suite 1020
Chicago, Illinois 60602
Facsimile: (312) 827-8542
The Company or the Trustee, by notice to the other, may designate additional or different
addresses for subsequent notices or communications.
The Trustee agrees to accept and act upon facsimile transmission of written instructions
pursuant to this Indenture; provided, however, that (a) the party providing such written
instructions, subsequent to such transmission of written instructions, shall provide the originally
executed instructions in a timely manner and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party providing such instructions
or directions.
All notices and communications (other than those sent to the Trustee or Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee or Holders shall be deemed duly given and effective only upon
receipt.
Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to
its address shown on the security register for the Notes. Any notice or communication shall also
be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
SECTION 11.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA §312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA §312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
80
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) shall comply
with the provisions of TIA §314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or
condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder of the
Company, any Subsidiary Guarantor or the Trustee, as such, shall have any liability for any
obligations of the Company or of the Subsidiary Guarantors under the Notes, this Indenture, the
Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
SECTION 11.08. Governing Law; Waiver of Jury Trial.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
81
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
SECTION 11.10. Successors.
All covenants and agreements of the Company in this Indenture and the Notes shall bind its
successors. All covenants and agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 11.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted
for convenience of reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 11.14. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
[Signatures on following page]
82
SIGNATURES
| Dated as the date first written above ISSUER: Lear Corporation |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | Senior Vice President and Chief Financial Officer |
|||
| SUBSIDIARY GUARANTORS: Lear Argentine Holdings Corporation #2 Lear Automotive Dearborn, Inc. Lear Corporation (Germany) Ltd. Lear Corporation EEDS and Interiors Lear Corporation Global Development, Inc. Lear European Operations Corporation Lear Mexican Holdings Corporation Lear Mexican Seating Corporation Lear Operations Corporation Lear Seating Holdings Corp. #50 Lear South American Holdings Corporation Renosol Seating, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President | |||
| Lear #50 Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear South American Holdings Corporation, Sole Member of Lear #50 Holdings, LLC |
|||
| Lear Automotive Manufacturing, LLC Lear Investments Company, L.L.C. |
||||
| By: | /s/ Shari L. Burgess | |||
| Name: | Shari L. Burgess | |||
| Title: | Vice President and Treasurer | |||
| Lear EEDS Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Argentine Holdings Corporation #2, Sole Member of Lear EEDS Holdings, LLC |
|||
| Lear Holdings, LLC |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Argentine Holdings Corporation #2, Sole Member of Lear Holdings, LLC |
|||
| Lear Mexican Holdings, L.L.C. |
||||
| By: | /s/ Matthew J. Simoncini | |||
| Name: | Matthew J. Simoncini | |||
| Title: | President of Lear Mexican Holdings Corporation, Sole Member of Lear Mexican Holdings, L.L.C. |
|||
| Lear Trim L.P. |
||||
| By: | /s/ William P. McLaughlin | |||
| Name: | William P. McLaughlin | |||
| Title: | Vice President of Lear Mexican Holdings Corporation, General Partner of Lear Trim L.P. |
|||
| TRUSTEE: The Bank of New York Mellon Trust Company, N.A. |
||||
| By: | /s/ Lawrence M. Kusch | |||
| Name: | Lawrence M. Kusch | |||
| Title: | Vice President | |||
Exhibit 99.1
FOR IMMEDIATE RELEASE
| Lear Contact: | ||
| Mel Stephens | ||
| (248) 447-1624 |
LEAR PRICES $700 MILLION SENIOR NOTES OFFERING
SOUTHFIELD, Mich., March 24, 2010 — Lear Corporation (NYSE: LEA) announced today that it priced an
underwritten public offering of $350 million in aggregate principal amount of 7.875% senior notes
due 2018, and $350 million in aggregate principal amount of 8.125% senior notes due 2020. The
senior notes due 2018 were priced at 99.276% of par, resulting in a yield to maturity of 8.00%, and
the senior notes due 2020 were priced at 99.164% of par, resulting in a yield to maturity of 8.25%.
Lear intends to use the net proceeds from this offering, together with its current cash and cash
equivalents, to repay in full all amounts outstanding under the term loans provided under its first
lien credit facility and its second lien credit facility. The principal amounts outstanding under
the term loans provided under the first lien credit facility and the second lien credit facility
are $375 million and $550 million, respectively. The offering is anticipated to close on March 26,
2010, subject to market and other conditions.
Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Barclays Capital Inc. and UBS
Securities LLC are acting as joint book-running managers of the offering. Lear is making this
offering pursuant to a shelf registration statement filed with the Securities and Exchange
Commission on March 22, 2010, which was effective upon filing, and a prospectus supplement to
Lear’s prospectus, dated March 22, 2010, filed with the shelf registration statement. A final
prospectus supplement relating to the offering will be filed with the Securities and Exchange
Commission. Copies of the prospectus and prospectus supplement relating to the offering may be
obtained from Citigroup Global Markets Inc. at Brooklyn Army Terminal, 140 58th Street,
8th floor, Brooklyn, NY 11220, Attn: Prospectus Department (or by telephone at
1-800-831-9146), J.P. Morgan Securities Inc. at 383 Madison Avenue, 3rd floor, New York,
New York 10179, Attn: Syndicate Desk (or by telephone at 1-800-245-8812), Barclays Capital Inc. c/o
Broadridge Integrated Distribution Services, 1155 Long Island Avenue, Edgewood, NY 11717 (or by
email at Barclaysprospectus@broadridge.com or telephone at 1-888-603-5847), UBS Securities LLC at
299 Park Avenue, New York, NY 10171, Attn: Prospectus Department (or by telephone at
1-888-827-7275) or through the SEC website at www.sec.gov.
This announcement is neither an offer to sell nor a solicitation of an offer to buy any securities
and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer,
solicitation or sale would be unlawful.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Actual results may differ materially from anticipated results as a
result of certain risks and uncertainties, including but not limited to: general
economic conditions in the markets in which Lear operates, including changes in interest rates or
currency exchange rates; the financial condition and restructuring actions of Lear’s customers and
suppliers; changes in actual industry vehicle production levels from Lear’s current estimates;
fluctuations in the production of vehicles for which Lear is a supplier; the loss of business with
respect to, or the lack of commercial success of, a vehicle model for which Lear is a significant
supplier; disruptions in the relationships with Lear’s suppliers; labor disputes involving Lear or
its significant customers or suppliers or that otherwise affect Lear; the outcome of customer
negotiations; the impact and timing of program launch costs; the costs, timing and success of
restructuring actions; increases in Lear’s warranty or product liability costs; risks associated
with conducting business in foreign countries; competitive conditions impacting Lear’s key
customers and suppliers; the cost and availability of raw materials and energy; Lear’s ability to
mitigate increases in raw material, energy and commodity costs; the outcome of legal or regulatory
proceedings to which Lear is or may become a party; unanticipated changes in cash flow, including
Lear’s ability to align Lear’s vendor payment terms with those of its customers; Lear’s ability to
access capital markets on commercially reasonable terms; further impairment charges initiated by
adverse industry or market developments; Lear’s anticipated future performance, including, without
limitation, Lear’s ability to maintain or increase revenue and gross margins, control future
operating expenses and make necessary capital expenditures; and other risks described from time to
time in the Company’s Securities and Exchange Commission filings. Future operating results will be
based on various factors, including actual industry production volumes, commodity prices and the
Company’s success in implementing its operating strategy.
The forward-looking statements in this press release are made as of the date hereof, and Lear does
not assume any obligation to update, amend or clarify them to reflect events, new information or
circumstances occurring after the date hereof.
About Lear Corporation
Lear Corporation is one of the world’s leading suppliers of automotive Seating and Electrical Power
Management systems. The Company’s world-class products are designed, engineered and manufactured by
a diverse team of 75,000 employees at 197 facilities in 35 countries. Lear’s headquarters are in
Southfield, Michigan, and Lear is traded on the New York Stock Exchange under the symbol [LEA].
Further information about Lear is available on the Internet at http://www.lear.com.
Exhibit 99.2
FOR IMMEDIATE RELEASE
Lear Contact:
Mel Stephens
(248) 447-1624
Mel Stephens
(248) 447-1624
LEAR COMPLETES TRANSFORMATIONAL REFINANCING;
NO SIGNIFICANT DEBT MATURITIES UNTIL 2018
NO SIGNIFICANT DEBT MATURITIES UNTIL 2018
SOUTHFIELD, Mich., March 26, 2010 — Lear Corporation [NYSE: LEA] announced today that
it has successfully completed its previously announced underwritten public offering of $350 million
in aggregate principal amount of 7.875% senior unsecured notes due 2018 and $350 million in
aggregate principal amount of 8.125% senior unsecured notes due 2020. Citigroup Global Markets
Inc., J.P. Morgan Securities Inc., Barclays Capital Inc. and UBS Securities LLC acted as joint
book-running managers of the offering.
Lear used the net proceeds from this offering, together with its current cash and cash
equivalents, to repay in full all amounts outstanding under the term loans provided under its first
lien credit facility and its second lien credit facility. The principal amounts outstanding under
the term loans provided under the first lien credit facility and the second lien credit facility
were $375 million and $550 million, respectively.
“I am extremely pleased with the work and smooth execution of this deal by the Lear team and
our investment banking partners. This refinancing is transformational for our Company. Benefits of
the refinancing include further strengthening of our balance sheet by reducing Lear’s debt by $225
million, lowering our overall interest costs and extending our only significant debt maturities to
2018 and 2020. Further, this transaction provides Lear with substantial flexibility to invest in
our global business and execute on our strategic objectives going forward,” commented Bob Rossiter,
Lear’s chairman, CEO and president.
About Lear Corporation
Lear Corporation is one of the world’s leading suppliers of automotive Seating and Electrical Power
Management systems. The Company’s world-class products are designed, engineered and manufactured by
a diverse team of 75,000 employees at 197 facilities in 36 countries. Lear’s headquarters are in
Southfield, Michigan, and Lear is traded on the New York Stock Exchange under the symbol [LEA].
Further information about Lear is available on the Internet at — http://www.lear.com.
# # # #