\n| \n EXHIBIT A FORM OF SECURITY<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n -iii-<\/p>\n \n
\nINDENTURE dated as of March 7, 2011, by and among THE JONES GROUP INC., a
\nPennsylvania corporation, JONES APPAREL GROUP HOLDINGS, INC., a Delaware
\ncorporation, JONES APPAREL GROUP USA, INC., a Delaware corporation, and JAG
\nFOOTWEAR, ACCESSORIES AND RETAIL CORPORATION, a New Jersey corporation
\n(collectively, the “Issuers<\/strong>“), and U.S. BANK NATIONAL
\nASSOCIATION, as trustee (the “Trustee<\/strong>“).<\/p>\n<\/p>\nEach party agrees as follows for the benefit of the other parties and for the
\nequal and ratable benefit of the Holders of the Securities.<\/p>\n<\/p>\n ARTICLE 1<\/p>\n \n DEFINITIONS AND INCORPORATION BY REFERENCE<\/p>\n \n Section 1.01. Definitions<\/u>.<\/p>\n<\/p>\n “Additional Securities<\/strong>” means 6.875% Senior Notes due 2019
\nissued under this Indenture after the Closing Date and in compliance with
\nSection 2.15 hereof, it being understood that any Securities issued in exchange
\nfor or replacement of any Securities issued on the Closing Date shall not be
\nAdditional Securities.<\/p>\n<\/p>\n“Affiliate<\/strong>” of any specified Person means any other Person,
\ndirectly or indirectly, controlling or controlled by or under direct or indirect
\ncommon control with such specified Person. For the purposes of this definition,
\n“control<\/strong>” when used with respect to any Person means the power
\nto direct the management and policies of such Person, directly or indirectly,
\nwhether through the ownership of voting securities, by contract or otherwise;
\nand the terms “controlling<\/strong>” and “controlled<\/strong>”
\nhave meanings correlative to the foregoing.<\/p>\n<\/p>\n“Attributable Debt<\/strong>” in respect of a Sale and Leaseback
\nTransaction means, at the time of determination, the present value (discounted
\nat the actual rate of interest of such transaction) of the obligation of the
\nlessee for net rental payments during the remaining term of the lease included
\nin such Sale and Leaseback Transaction (including any period for which such
\nlease has been extended or may, at the option of the lessor, be extended). The
\nterm “net rental payments” under any lease for any period shall mean the sum of
\nthe rental and other payments required to be paid in such period by the lessee
\nthereunder, not including, however, any amounts required to be paid by such
\nlessee (whether or not designated as rental or additional rental) on account of
\nmaintenance and repairs, insurance, taxes, assessments, water rates or similar
\ncharges required to be paid by such lessee thereunder or any amounts required to
\nbe paid by such lessee thereunder contingent upon the amount of sales,
\nmaintenance and repairs, insurance, taxes, assessments, water rates or similar
\ncharges. In the case of any lease which is terminable by the lessee upon the
\npayment of a penalty, such net amount shall also include the amount of such
\npenalty, but no rent shall be considered as required to be paid under such lease
\nsubsequent to the first date upon which it may be so terminated without payment
\nof such penalty.<\/p>\n<\/p>\n“Beneficial Owner<\/strong>” means “beneficial owner” as such term is
\ndefined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in
\ncalculating the beneficial ownership of any particular “person” (as that term is
\nused in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to
\nhave beneficial ownership of all Securities that such “person” has the right to
\nacquire by conversion or exercise of other securities, whether such right is
\ncurrently exercisable or is exercisable only upon the occurrence of a subsequent
\ncondition. The terms “Beneficially Owns<\/strong>” and
\n“Beneficially Owned<\/strong>” have a corresponding meaning.<\/p>\n<\/p>\n
\n“Board of Directors<\/strong>” means the Board of Directors of the
\napplicable Person or any committee thereof duly authorized to act on behalf of
\nthe Board of Directors of such Person.<\/p>\n<\/p>\n“Business Day<\/strong>” means each day which is not a Legal Holiday.\n<\/p>\n<\/p>\n“Capital Stock<\/strong>” of any Person means any and all shares,
\ninterests, rights to purchase, warrants, options, participating or other
\nequivalents of or interests in (however designated) equity of such Person,
\nincluding any preferred stock, but excluding any debt securities convertible
\ninto such equity.<\/p>\n<\/p>\n“Change of Control<\/strong>” means the occurrence of any of the
\nfollowing:<\/p>\n<\/p>\n(a) the direct or indirect sale, transfer, conveyance or other disposition
\n(other than by way of merger or consolidation), in one or a series of related
\ntransactions, of all or substantially all of the properties or assets of The
\nJones Group Inc. and its Subsidiaries taken as a whole to any “person” (as that
\nterm is used in Section 13(d)(3) of the Exchange Act) other than The Jones Group
\nInc. or one of its Subsidiaries;<\/p>\n<\/p>\n (b) the consummation of any transaction (including, without limitation, any
\nmerger or consolidation) the result of which is that any “person” (as defined
\nabove) becomes the Beneficial Owner, directly or indirectly, of more than 50% of
\nthe voting stock of The Jones Group Inc. (measured by voting power rather than
\nthe number of shares), other than (1) any such transaction where the voting
\nstock of The Jones Group Inc. (measured by voting power rather than number of
\nshares) outstanding immediately prior to such transaction constitutes or is
\nconverted into or exchanged for a majority of the outstanding shares of voting
\nstock of such Beneficial Owner (measured by voting power rather than number of
\nshares) or (2) any merger or consolidation of The Jones Group Inc. with or into
\nany person (as defined above) (a “Permitted Person<\/strong>“) or a
\nSubsidiary of a Permitted Person, in each case, if immediately after such
\ntransaction no person is the Beneficial Owner, directly or indirectly, of more
\nthan 50% of the total voting stock of such Permitted Person (measured by voting
\npower rather than the number of shares); or<\/p>\n<\/p>\n(c) the first day on which a majority of the members of the Board of
\nDirectors of The Jones Group Inc. are not Continuing Directors.<\/p>\n<\/p>\n “Change of Control Offer<\/strong>” means an offer to repurchase
\nSecurities pursuant to Section 4.07 hereof.<\/p>\n<\/p>\n“Change of Control Payment<\/strong>” means, with respect to
\nSecurities tendered for repurchase pursuant to a Change of Control Offer, an
\namount equal to 101% of the aggregate principal amount of such Securities plus
\naccrued and unpaid interest thereon, if any, to the date of repurchase.<\/p>\n<\/p>\n“Change of Control Triggering Event<\/strong>” means, with respect to
\nthe Securities, that the Securities are rated lower than Investment Grade by any
\nof the Rating Agencies on any date during the period (the “Trigger
\nPeriod<\/strong>“) commencing 60 days prior to the first public announcement by
\nThe Jones Group Inc. of any Change of Control (or pending Change of Control) and
\nending 60 days following consummation of such Change of Control (which Trigger
\nPeriod will be extended following consummation of a Change of Control for so
\nlong as any of the Rating Agencies has publicly announced that it is considering
\na possible ratings change). Notwithstanding the foregoing, no Change of Control
\nTriggering Event will be deemed to have occurred in connection with any
\nparticular Change of Control unless and until such Change of Control has
\nactually been consummated.<\/p>\n<\/p>\n“Closing Date<\/strong>” means the date of this Indenture.<\/p>\n<\/p>\n-2-<\/p>\n \n
\n“Code<\/strong>” means the Internal Revenue Code of 1986, as amended.\n<\/p>\n<\/p>\n“Comparable Treasury Issue<\/strong>” means the United States Treasury
\nsecurity selected by an Independent Investment Banker as having a maturity
\ncomparable to the remaining term (“remaining life<\/strong>“) of the
\nSecurities to be redeemed that would be utilized, at the time of selection and
\nin accordance with customary financial practice, in pricing new issues of
\ncorporate debt securities of comparable maturity to the remaining term of the
\nSecurities.<\/p>\n<\/p>\n“Comparable Treasury Price<\/strong>” means, with respect to any
\nredemption date, (a) the average of five Reference Treasury Dealer Quotations
\nfor such redemption date after excluding the highest and lowest of such
\nReference Treasury Dealer Quotations, or (b) if the Independent Investment
\nBanker obtains fewer than five such Reference Treasury Dealer Quotations, the
\naverage of all such quotations.<\/p>\n<\/p>\n“Consolidated Equity<\/strong>” means consolidated total equity of the
\nIssuers and their respective Subsidiaries as determined in accordance with GAAP
\nand reflected on the Issuers153 most recent balance sheet.<\/p>\n<\/p>\n“Consolidated Net Tangible Assets<\/strong>” means as of any date of
\ndetermination, the total amount of assets of the Issuers and their respective
\nSubsidiaries (less applicable reserves and other properly deductible items)
\nafter deducting (a) all current liabilities (excluding the amount of those which
\nare by their terms extendable or renewable at the option of the obligor to a
\ndate more than 12 months after the date as of which the amount is being
\ndetermined and excluding all intercompany items between an Issuer and any of its
\nwholly-owned Subsidiaries or between Issuers or between Subsidiaries of Issuers)
\nand (b) all goodwill, trade names, trademarks, patents, unamortized debt
\ndiscount and expense and other like intangible assets, all as determined on a
\nconsolidated basis in accordance with GAAP.<\/p>\n<\/p>\n“Continuing Directors<\/strong>” means, as of any date of
\ndetermination, any member of the Board of Directors of The Jones Group Inc. who:\n<\/p>\n<\/p>\n(a) was a member of such Board of Directors on the date hereof; or<\/p>\n<\/p>\n (b) was nominated for election or elected to such Board of Directors with the
\napproval of a majority of the Continuing Directors who were members of such
\nBoard of Directors at the time of such nomination or election.<\/p>\n<\/p>\n “Corporate Trust Office<\/strong>” means the principal office of the
\nTrustee at which at any time its corporate trust business shall be administered,
\nwhich office at the date hereof is located at U.S. Bank National Association,
\nAttention: Corporate Trust Services, Two Midtown Plaza, 1349 W. Peachtree St.
\nNW, Suite 1050, Atlanta, Georgia 30309, or such other address as the Trustee may
\ndesignate from time to time by notice to the Holders and the Company, or the
\nprincipal corporate trust office of any successor Trustee (or such other address
\nas such successor Trustee may designate from time to time by notice to the
\nHolders and the Company)<\/p>\n<\/p>\n“Credit Agreement<\/strong>” means the Credit Agreement, dated as of
\nMay 13, 2009, by and among the Issuers and certain other Subsidiaries of Jones
\nApparel Group Holdings, Inc., JPMorgan Chase Bank, N.A., as administrative
\nagent, and the other parties thereto, together with the related documents
\nthereto (including the revolving loans thereunder, any guarantees and security
\ndocuments), as amended by Amendment No. 1 thereto dated as of May 5, 2010,
\nAmendment No. 2 thereto dated as of June 29, 2010, and as further amended,
\nextended, renewed, restated, supplemented, modified, replaced, refinanced or
\notherwise restructured (in whole or in part, and without limitation as to
\namount, terms, conditions, covenants and other provisions) from time to time,
\nand any agreement (and related document) governing Indebtedness incurred to
\nRefinance (including increasing the amount of available borrowings thereunder),\n<\/p>\n<\/p>\n-3-<\/p>\n \n
\nin whole or in part, the borrowings and commitments then outstanding or
\npermitted to be outstanding under such Credit Agreement or a successor Credit
\nAgreement, whether by the same or any other lender or group of lenders.<\/p>\n<\/p>\n “Default<\/strong>” means any event which is, or after notice or
\npassage of time or both would be, an Event of Default.<\/p>\n<\/p>\n“Depositary<\/strong>” means, with respect to the Securities issuable
\nin whole or in part in global form, the Person specified pursuant to Section
\n2.01 hereof as the initial Depositary with respect to the Securities, until a
\nsuccessor shall have been appointed and become such pursuant to the applicable
\nprovisions of this Indenture, and thereafter “Depositary” shall mean or include
\nsuch successor.<\/p>\n<\/p>\n“Dollar<\/strong>” means a dollar or other equivalent unit in such
\ncoin or currency of the United States as at the time shall be legal tender for
\nthe payment of public and private debt.<\/p>\n<\/p>\n“Exchange Act<\/strong>” means the Securities Exchange Act of 1934, as
\namended.<\/p>\n<\/p>\n“Funded Debt<\/strong>” means Indebtedness, whether incurred, assumed
\nor guaranteed, maturing by its terms more than one year from the date of
\ncreation thereof or which is extendable or renewable at the sole option of the
\nobligor in such manner that it may become payable more than one year from the
\ndate of creation thereof, provided<\/em>, however<\/em>, that Funded Debt
\nshall not include obligations created pursuant to leases, or any Indebtedness or
\nportion thereof maturing by its terms within one year from the time of any
\ncomputation of the amount of outstanding Funded Debt unless such Indebtedness
\nshall be extendable or renewable at the sole option of the obligor in such
\nmanner that it may become payable more than one year from such time, or any
\nIndebtedness for the payment or redemption of which money in the necessary
\namount shall have been deposited in trust either at or before the maturity or
\nredemption date thereof.<\/p>\n<\/p>\n“GAAP<\/strong>” means generally accepted accounting principles in the
\nUnited States of America as in effect from time to time, including those
\nprinciples set forth in (a) the opinions and pronouncements of the Accounting
\nPrinciples Board of the American Institute of Certified Public Accountants, (b)
\nstatements and pronouncements of the Financial Accounting Standards Board, (c)
\nsuch other statements by such other entity as approved by a significant segment
\nof the accounting profession and (d) the rules and regulations of the SEC
\ngoverning the inclusion of financial statements (including pro forma financial
\nstatements) in periodic reports required to be filed pursuant to Section 1-3 of
\nthe Exchange Act, including opinions and pronouncements in staff accounting
\nbulletins and similar written statements from the accounting staff of the SEC.
\nAll ratios and computations based on GAAP contained in this Indenture shall be
\ncomputed in conformity with GAAP.<\/p>\n<\/p>\n“Global Security<\/strong>” means a Security that is issued in global
\nform in the name of the Depositary with respect thereto or its nominee.<\/p>\n<\/p>\n“Holder<\/strong>” or “Securityholder<\/strong>” means the
\nPerson in whose name a Security is registered on the Registrar153s books.<\/p>\n<\/p>\n“Indebtedness<\/strong>” means indebtedness for borrowed money and all
\nindebtedness under purchase money mortgages or other purchase money Liens or
\nconditional sales or similar title retention agreements (but excluding trade
\naccounts payable in the ordinary course of business) in each case where such
\nindebtedness has been created, incurred, assumed or guaranteed by such Person or
\nwhere such Person is otherwise liable therefor and indebtedness for borrowed
\nmoney secured by any Lien upon property owned by such Person even though such
\nPerson has not assumed or become liable for the payment of such indebtedness;
\nprovided <\/em>that if the obligation so secured has not been assumed in full
\nby such Person or is otherwise<\/p>\n<\/p>\n-4-<\/p>\n \n
\nnot such Person153s legal liability in full, the amount of such obligation for
\nthe purposes of this definition shall be limited to the lesser of the amount of
\nsuch obligation secured by such Lien or the fair market value of the property
\nsecuring such Lien.<\/p>\n<\/p>\n “Indenture<\/strong>” means this Indenture as amended or supplemented
\nfrom time to time and includes the terms of the Securities established as
\ncontemplated by Section 2.01.<\/p>\n<\/p>\n“Independent Investment Banker<\/strong>” means either Citigroup
\nGlobal Markets Inc. or J.P. Morgan Securities LLC, as specified by the Issuers,
\nor if neither of the foregoing is willing or able to select the Comparable
\nTreasury Issue, an independent investment banking institution of national
\nstanding appointed by the Issuers.<\/p>\n<\/p>\n“Investment Grade<\/strong>” means a rating of Baa3 or better by
\nMoody153s (or its equivalent under any successor rating category of Moody153s) and a
\nrating of BBB- or better by S&P (or its equivalent under any successor
\nrating category of S&P), and the equivalent investment grade credit rating
\nfrom any replacement rating agency or rating agencies selected by us under the
\ncircumstances permitting us to select a replacement agency and in the manner for
\nselecting a replacement agency, in each case as set forth in the definition of
\n“Rating Agency.”<\/p>\n<\/p>\n“Issuer<\/strong>” means each party named as such in this Indenture
\nuntil a successor replaces it and, thereafter, means the successor and, for
\npurposes of any provision contained herein and required by the TIA, each other
\nobligor on the indenture securities.<\/p>\n<\/p>\n“Lien<\/strong>” means any mortgage, pledge, security interest,
\nencumbrance, lien or charge of any kind (including any conditional sale or other
\ntitle retention agreement or lease in the nature thereof).<\/p>\n<\/p>\n“Moody153s<\/strong>” means Moody153s Investors Service, Inc., a
\nsubsidiary of Moody153s Corporation, and its successors.<\/p>\n<\/p>\n“Officer<\/strong>” means the Chairman of the Board of Directors, the
\nChief Executive Officer, the Chief Financial Officer, the President, any Vice
\nPresident, the Treasurer or the Secretary of the applicable Issuer.<\/p>\n<\/p>\n“Officers153 Certificate<\/strong>” means a certificate signed by two
\nOfficers.<\/p>\n<\/p>\n“Opinion of Counsel<\/strong>” means a written opinion from legal
\ncounsel. The counsel may be an employee of or counsel to the applicable Issuer
\nor the Trustee.<\/p>\n<\/p>\n“Person<\/strong>” means any individual, corporation, partnership,
\nlimited liability company, joint venture, association, joint-stock company,
\ntrust, unincorporated organization, government or any agency or political
\nsubdivision thereof or any other entity.<\/p>\n<\/p>\n“principal<\/strong>” of a Security means the principal of the
\nSecurity plus the premium, if any, payable on the Security which is due or
\noverdue or is to become due at the relevant time.<\/p>\n<\/p>\n“Principal Property<\/strong>” means any property owned or leased by
\nany Issuer or Restricted Subsidiary, the net book value of which exceeds one
\npercent of the Consolidated Net Tangible Assets of the Issuers and their
\nrespective Subsidiaries.<\/p>\n<\/p>\n“Prospectus<\/strong>” means the prospectus supplement, dated March 2,
\n2011, relating to the issuance of the Securities.<\/p>\n<\/p>\n-5-<\/p>\n \n
\n“Qualified Receivables Transaction<\/strong>” means any transaction or
\nseries of transactions in an aggregate amount not to exceed $300.0 million that
\nmay be entered into by the Issuers or any Restricted Subsidiary in which the
\nIssuers or any Restricted Subsidiary may sell, contribute, convey or otherwise
\ntransfer to (a) a Receivables Subsidiary (in the case of a transfer by the
\nIssuers or any Restricted Subsidiary) and (b) any other person (in the case of a
\ntransfer by a Receivables Subsidiary), or may grant a security interest in, any
\naccounts receivable (whether now existing or arising in the future) of the
\nIssuers or any Restricted Subsidiary, and any related assets, including, without
\nlimitation, all collateral securing such accounts receivable, all contracts and
\nall guarantees or other obligations in respect of such accounts receivable,
\nproceeds of such accounts receivable and other assets (including contract
\nrights) which are customarily transferred or in respect of which security
\ninterests are customarily granted in connection with asset securitization
\ntransactions involving accounts receivable.<\/p>\n<\/p>\n“Rating Agency<\/strong>” means each of Moody153s and S&P;
\nprovided<\/em>, that if any of Moody153s or S&P ceases to rate the
\nSecurities or fails to make a rating of the Securities publicly available for
\nreasons outside the Issuers153 control, the Issuers may appoint another
\n“nationally recognized statistical rating organization” within the meaning under
\nSection 3 of the Exchange Act as a replacement for such Rating Agency;
\nprovided<\/em>, that the Issuers shall give notice of such appointment to the
\nTrustee.<\/p>\n<\/p>\n“Receivables Subsidiary<\/strong>” means a wholly owned Subsidiary of
\nthe Issuers (or another person formed for the purpose of engaging in a Qualified
\nReceivables Transaction with the Issuers or a Restricted Subsidiary in which the
\nIssuers or any Restricted Subsidiary make an investment and to which the Issuers
\nor any Restricted Subsidiary transfer accounts receivable) that engages in no
\nactivities other than in connection with the financing of accounts receivable,
\nall proceeds thereof and all rights (contractual or other), collateral and other
\nassets relating thereto, and any business or activities incidental or related to
\nsuch business, and that is designated by the Board of Directors (as provided
\nbelow) as a Receivables Subsidiary and<\/p>\n<\/p>\n(a) no portion of the Indebtedness or any other obligations (contingent or
\notherwise) of which (1) is guaranteed by the Issuers or any Restricted
\nSubsidiary (excluding guarantees of obligations (other than the principal of,
\nand interest on, Indebtedness) pursuant to representations, warranties,
\ncovenants, indemnities and performance guarantees customarily entered into in
\nconnection with accounts receivable financings), (2) is recourse to or obligates
\nthe Issuers or any Restricted Subsidiary in any way other than pursuant to
\nrepresentations, warranties, covenants and indemnities customarily entered into
\nin connection with accounts receivables financings or (3) subjects any property
\nor asset of the Issuers or of any Restricted Subsidiary, directly or indirectly,
\ncontingently or otherwise, to the satisfaction thereof, other than pursuant to
\nrepresentations, warranties, covenants and indemnities customarily entered into
\nin connection with accounts receivable financings;<\/p>\n<\/p>\n (b) with which neither the Issuers nor any Restricted Subsidiary have any
\nmaterial contract, agreement, arrangement or understanding other than on terms
\nno less favorable to the Issuers or such Restricted Subsidiary than those that
\nmight be obtained at the time from persons who are not affiliates of the
\nIssuers, other than fees payable in the ordinary course of business in
\nconnection with servicing accounts receivable; and<\/p>\n<\/p>\n (c) with which neither the Issuers nor any Restricted Subsidiary have any
\nobligation to maintain or preserve such Receivables Subsidiary153s financial
\ncondition (other than customary requirements for the maintenance of a minimum
\nnet worth) or cause such Receivables Subsidiary to achieve certain levels of
\noperating results.<\/p>\n<\/p>\n -6-<\/p>\n \n
\nAny such designation by the Board of Directors shall be evidenced to the
\nTrustee by filing with the Trustee a board resolution giving effect to such
\ndesignation and an Officers153 Certificate certifying that such designation
\ncomplied with the preceding conditions.<\/p>\n<\/p>\n “Reference Treasury Dealer<\/strong>” means Citigroup Global Markets
\nInc. and J.P. Morgan Securities LLC and their respective successors and, at the
\nIssuers153 option, three other nationally recognized investment banking firms that
\nare primary dealers of U.S. Government securities in New York City (each, a
\n“Primary Treasury Dealer<\/strong>“). If any of the foregoing shall cease
\nto be a Primary Treasury Dealer, the Issuers shall substitute therefor another
\nPrimary Treasury Dealer.<\/p>\n<\/p>\n“Reference Treasury Dealer Quotations<\/strong>” means, with respect
\nto each Reference Treasury Dealer and any redemption date, the average, as
\ndetermined by the Independent Investment Banker, of the bid and asked prices for
\nthe Comparable Treasury Issue (expressed in each case as a percentage of its
\nprincipal amount) quoted in writing to the Independent Investment Banker at 5:00
\np.m., New York City time, on the third Business Day preceding such redemption
\ndate.<\/p>\n<\/p>\n“Refinance<\/strong>” means, in respect of any Indebtedness, to
\nrefinance, extend, renew, refund, replace, repay, prepay, purchase, redeem,
\ndefease or retire, or to issue other Indebtedness in exchange or replacement
\nfor, such Indebtedness.<\/p>\n<\/p>\n“Remaining Scheduled Payments<\/strong>” means, with respect to any
\nSecurity to be redeemed, the remaining scheduled payments of principal of and
\ninterest on such Security (not including any portion of such payments of
\ninterest accrued to the date of redemption) that would be due after the related
\nredemption date but for such redemption.<\/p>\n<\/p>\n“Restricted Subsidiary<\/strong>” means, at any time, any Subsidiary
\nof an Issuer (other than an Issuer) which would be a “Significant Subsidiary” at
\nsuch time, as such term is defined in Regulation S-X promulgated by the SEC, as
\nin effect on the Closing Date.<\/p>\n<\/p>\n“S&P<\/strong>” means Standard & Poor153s Ratings Services, a
\ndivision of The McGraw-Hill Companies, Inc., and its successors.<\/p>\n<\/p>\n“SEC<\/strong>” means the Securities and Exchange Commission.<\/p>\n<\/p>\n“Securities<\/strong>” means the Issuers153 6.875% Senior Notes due 2019
\nissued on the Closing Date and any Additional Securities.<\/p>\n<\/p>\n“Securities Act<\/strong>” means the Securities Act of 1933, as
\namended.<\/p>\n<\/p>\n“Subsidiary<\/strong>” of any Person means any corporation,
\nassociation, partnership or other business entity of which more than 50% of the
\ntotal voting power of shares of Capital Stock or other interests (including
\npartnership interests) entitled (without regard to the occurrence of any
\ncontingency) to vote in the election of directors, managers or trustees thereof
\nis at the time owned or controlled, directly or indirectly, by (a) such Person,
\n(b) such Person and one or more Subsidiaries of such Person or (c) one or more
\nSubsidiaries of such Person.<\/p>\n<\/p>\n“TIA<\/strong>” means the Trust Indenture Act of 1939 (15 U.S.C.
\nSections 77aaa-77bbbb) in effect on the Closing Date.<\/p>\n<\/p>\n“Treasury Rate<\/strong>” means, with respect to any redemption date,
\n(a) the yield, under the heading which represents the average for the
\nimmediately preceding week, appearing in the most recently published<\/p>\n<\/p>\n-7-<\/p>\n \n
\nstatistical release designated “H.15(519)” or any successor publication which
\nis published weekly by the Board of Governors of the Federal Reserve System and
\nwhich establishes yields on actively traded U.S. Treasury securities adjusted to
\nconstant maturity under the caption “Treasury Constant Maturities,” for the
\nmaturity corresponding to the Comparable Treasury Issue (if no maturity is
\nwithin three months before or after the remaining life (as defined in the
\ndefinition of Comparable Treasury Issue) of the Securities, yields for the two
\npublished maturities most closely corresponding to the Comparable Treasury Issue
\nwill be determined and the Treasury Rate will be interpolated or extrapolated
\nfrom such yields on a straight line basis, rounding to the nearest month) or (b)
\nif such release (or any successor release) is not published during the week
\npreceding the calculation date or does not contain such yields, the rate per
\nannum equal to the semiannual equivalent yield to maturity of the Comparable
\nTreasury Issue, calculated using a price for the Comparable Treasury Issue
\n(expressed as a percentage of its principal amount) equal to the Comparable
\nTreasury Price for such redemption date.<\/p>\n<\/p>\n “Trustee<\/strong>” means the party named as such in this Indenture
\nuntil a successor replaces it and, thereafter, means the successor.<\/p>\n<\/p>\n“Trust Officer<\/strong>” means any Vice President, Assistant Vice
\nPresident, Assistant Treasurer or any other officer or assistant officer of the
\nTrustee assigned by the Trustee to administer its corporate trust matters.<\/p>\n<\/p>\n“Uniform Commercial Code<\/strong>” means the New York Uniform
\nCommercial Code as in effect from time to time.<\/p>\n<\/p>\n“U.S. Government Obligations<\/strong>” means direct obligations (or
\ncertificates representing an ownership interest in such obligations) of the
\nUnited States of America (including any agency or instrumentality thereof) for
\nthe payment of which the full faith and credit of the United States of America
\nis pledged and which are not callable or redeemable at the issuer153s option.<\/p>\n<\/p>\n“Wholly Owned Restricted Subsidiary<\/strong>” means a Restricted
\nSubsidiary, 100% of the outstanding Capital Stock of which (other than Capital
\nStock constituting directors153 qualifying shares or interests held by directors
\nor shares or interests required to be held by foreign nationals, in each case to
\nthe extent mandated by applicable law) is directly or indirectly owned by an
\nIssuer or by one or more Wholly Owned Restricted Subsidiaries.<\/p>\n<\/p>\nSection 1.02. Other Definitions<\/u>.<\/p>\n<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Term<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Defined in Section<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n Appendix<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 2.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Bankruptcy Law<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 6.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Change of Control Payment Date<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 4.07<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n covenant defeasance option<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 8.01<\/p>\n<\/td>\n | \n (b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n Custodian<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 6.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Definitive Security<\/p>\n<\/td>\n | <\/td>\n | \n Appendix<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Event of Default<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 6.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n legal defeasance option<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 8.01<\/p>\n<\/td>\n | \n (b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n Legal Holiday<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 10.08<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Notice of Default<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 6.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Paying Agent<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 2.05<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Permitted Person<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 1.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Primary Treasury Dealer<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 1.01<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n -8-<\/p>\n \n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Term<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Defined in Section<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| \n protected purchaser<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 2.09<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Registrar<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 2.05<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Sale and Leaseback Transaction<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 4.05<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Securities Custodian<\/p>\n<\/td>\n | <\/td>\n | \n Appendix<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Successor Company<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n 5.01<\/p>\n<\/td>\n | \n (a)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Section 1.03. Incorporation by Reference of Trust Indenture Act<\/u>. This
\nIndenture is subject to the mandatory provisions of the TIA, which are
\nincorporated by reference in and made a part of this Indenture. The following
\nTIA terms have the following meanings:<\/p>\n<\/p>\n “Commission<\/strong>” means the SEC.<\/p>\n<\/p>\n“indenture securities<\/strong>” means the Securities.<\/p>\n<\/p>\n“indenture Securityholder<\/strong>” means a Holder or Securityholder.\n<\/p>\n<\/p>\n“indenture to be qualified<\/strong>” means this Indenture.<\/p>\n<\/p>\n“indenture trustee<\/strong>” or “institutional trustee” means the
\nTrustee.<\/p>\n<\/p>\n“obligor<\/strong>” on the indenture securities means the Issuers and
\nany other obligor on the indenture securities.<\/p>\n<\/p>\nAll other TIA terms used in this Indenture that are defined by the TIA,
\ndefined by TIA reference to another statute or defined by SEC rule have the
\nmeanings assigned to them by such definitions.<\/p>\n<\/p>\n Section 1.04. Rules of Construction<\/u>. Unless the context otherwise
\nrequires:<\/p>\n<\/p>\n (a) a term has the meaning assigned to it;<\/p>\n<\/p>\n (b) an accounting term not otherwise defined has the meaning assigned to it
\nin accordance with GAAP;<\/p>\n<\/p>\n (c) “or” is not exclusive;<\/p>\n<\/p>\n (d) “including” means including without limitation;<\/p>\n<\/p>\n (e) words in the singular include the plural and words in the plural include
\nthe singular; and<\/p>\n<\/p>\n (f) the principal amount of any non-interest bearing or other discount
\nsecurity at any date shall be the principal amount thereof that would be shown
\non a balance sheet of the issuer dated such date prepared in accordance with
\nGAAP.<\/p>\n<\/p>\n ARTICLE 2<\/p>\n \n THE SECURITIES<\/p>\n \n Section 2.01. Form of Securities<\/u>. Provisions relating to the
\nSecurities are set forth in the Appendix attached hereto (the
\n“Appendix<\/strong>“), which is hereby incorporated in and expressly made
\na part of<\/p>\n<\/p>\n-9-<\/p>\n \n
\nthis Indenture. The Securities and the Trustee153 s certificate of
\nauthentication shall each be substantially in the form of Exhibit A hereto,
\nwhich are hereby incorporated in and expressly made a part of this Indenture.\n<\/p>\n<\/p>\n Section 2.02. Denominations<\/u>. The Securities shall be issuable in such
\ndenominations as shall be specified as contemplated by Section 2.01. In the
\nabsence of any such provisions with respect to the Securities, the Securities
\ndenominated in Dollars shall be issuable in denominations of $2,000 and integral
\nmultiples of $1,000 in excess thereof.<\/p>\n<\/p>\n Section 2.03. Forms Generally<\/u>. The Securities may have notations,
\nlegends or endorsements required by law, securities exchange rule, agreements to
\nwhich any Issuer is subject, if any, or usage (provided <\/em>that any such
\nnotation, legend or endorsement is in a form acceptable to the Issuers). Each
\nSecurity shall be dated the date of its authentication.<\/p>\n<\/p>\nThe Definitive Securities shall be printed, lithographed or engraved on steel
\nengraved borders or may be produced in any other manner, all as determined by
\nthe Officers executing such Securities, as evidenced by their execution thereof.\n<\/p>\n<\/p>\n Section 2.04. Execution, Authentication and Delivery<\/u>. One or more
\nOfficers of the Issuers shall sign the Securities on behalf of the Issuers by
\nmanual or facsimile signature. The Issuers153 seal, if any, shall be impressed,
\naffixed, imprinted or reproduced on the Securities and may be in facsimile form.\n<\/p>\n<\/p>\n If an Officer of the Issuers whose signature is on a Security no longer holds
\nthat office at the time the Trustee authenticates the Security, the Security
\nshall be valid nevertheless.<\/p>\n<\/p>\n A Security shall not be valid until an authorized signatory of the Trustee
\nmanually signs the certificate of authentication on the Security. The signature
\nshall be conclusive evidence that the Security has been authenticated under this
\nIndenture.<\/p>\n<\/p>\n The Trustee shall authenticate and make available for delivery Securities as
\nset forth in the Appendix.<\/p>\n<\/p>\n The Trustee may appoint an authenticating agent reasonably acceptable to the
\nIssuers to authenticate the Securities. Any such appointment shall be evidenced
\nby an instrument signed by a Trust Officer, a copy of which shall be furnished
\nto the Issuers. Unless limited by the terms of such appointment, an
\nauthenticating agent may authenticate Securities whenever the Trustee may do so.
\nEach reference in this Indenture to authentication by the Trustee includes
\nauthentication by such agent. An authenticating agent has the same rights as any
\nRegistrar, Paying Agent or agent for service of notices and demands.<\/p>\n<\/p>\n Section 2.05. Registrar and Paying Agent<\/u>. The Issuers shall maintain
\nan office or agency where Securities may be presented for registration of
\ntransfer or for exchange (the “Registrar<\/strong>“) and an office or
\nagency where Securities may be presented for payment (the “Paying
\nAgent<\/strong>“). The Registrar shall keep a register of the Securities and of
\ntheir transfer and exchange. The Issuers may have one or more co-registrars and
\none or more additional paying agents. The term “Paying Agent” includes any
\nadditional paying agent, and the term “Registrar” includes any co-registrars.
\nThe Issuers initially appoint the Trustee as (a) Registrar and Paying Agent in
\nconnection with the Securities and (b) the Securities Custodian with respect to
\nthe Global Securities.<\/p>\n<\/p>\nThe Issuers shall enter into an appropriate agency agreement with any
\nRegistrar or Paying Agent not a party to this Indenture, which shall incorporate
\nthe terms of the TIA. The agreement shall implement the provisions of this
\nIndenture that relate to such agent. The Issuers shall notify the Trustee of the\n<\/p>\n<\/p>\n -10-<\/p>\n \n
\nname and address of any such agent. If the Issuers fail to maintain a
\nRegistrar or Paying Agent, the Trustee shall act as such and shall be entitled
\nto appropriate compensation therefor pursuant to Section 7.07. The Issuers or
\nany of their domestically organized Wholly Owned Restricted Subsidiaries may act
\nas Paying Agent or Registrar.<\/p>\n<\/p>\n The Issuers may remove any Registrar or Paying Agent upon written notice to
\nsuch Registrar or Paying Agent and to the Trustee; provided<\/em>,
\nhowever<\/em>, that no such removal shall become effective until (1)
\nacceptance of an appointment by a successor as evidenced by an appropriate
\nagreement entered into by the Issuers and such successor Registrar or Paying
\nAgent, as the case may be, and delivered to the Trustee or (2) notification to
\nthe Trustee that the Trustee shall serve as Registrar or Paying Agent until the
\nappointment of a successor in accordance with clause (1) above. The Registrar or
\nPaying Agent may resign at any time upon written notice; provided<\/em>,
\nhowever<\/em>, that the Trustee may resign as Paying Agent or Registrar only
\nif the Trustee also resigns as Trustee in accordance with Section 7.08.<\/p>\n<\/p>\nSection 2.06. Paying Agent to Hold Money in Trust<\/u>. On or before each
\ndue date of the principal and interest on the Securities, the Issuers shall
\ndeposit with the Paying Agent (or if an Issuer or a Subsidiary of any Issuer is
\nacting as Paying Agent, segregate and hold in trust for the benefit of the
\nPersons entitled thereto) a sum sufficient to pay such principal and interest
\nwhen so becoming due. The Issuers shall require each Paying Agent (other than
\nthe Trustee) to agree in writing that the Paying Agent shall hold in trust for
\nthe benefit of Securityholders or the Trustee all money held by the Paying Agent
\nfor the payment of principal of or interest on the Securities and shall notify
\nthe Trustee of any default by the Issuers in making any such payment. If an
\nIssuer or a Subsidiary of an Issuer acts as Paying Agent, it shall segregate the
\nmoney held by it as Paying Agent and hold it as a separate trust fund. The
\nIssuers at any time may require a Paying Agent to pay all money held by it to
\nthe Trustee and to account for any funds disbursed by the Paying Agent. Upon
\ncomplying with this Section, the Paying Agent shall have no further liability
\nfor the money delivered to the Trustee.<\/p>\n<\/p>\n Section 2.07. Securityholder Lists<\/u>. The Trustee shall preserve in as
\ncurrent a form as is reasonably practicable the most recent list available to it
\nof the names and addresses of Securityholders. If the Trustee is not the
\nRegistrar, the Issuers shall furnish, or cause the Registrar to furnish, to the
\nTrustee, in writing at least five Business Days before each interest payment
\ndate and at such other times as the Trustee may request in writing, a list in
\nsuch form and as of such date as the Trustee may reasonably require of the names
\nand addresses of Securityholders.<\/p>\n<\/p>\n Section 2.08. Transfer and Exchange<\/u>. The Securities shall be issued in
\nregistered form and shall be transferable only upon the surrender of a Security
\nfor registration of transfer and in compliance with the Appendix. When a
\nSecurity is presented to the Registrar with a request to register a transfer,
\nthe Registrar shall register the transfer as requested if the requirements of
\nSection 8-401(a)(1) of the Uniform Commercial Code are met. When Securities are
\npresented to the Registrar with a request to exchange them for an equal
\nprincipal amount of Securities of other denominations, the Registrar shall make
\nthe exchange as requested if the same requirements are met. To permit
\nregistration of transfers and exchanges, the Issuers shall execute and the
\nTrustee shall authenticate Securities at the Registrar153s request. The Issuers
\nmay require payment of a sum sufficient to pay all taxes, assessments or other
\ngovernmental charges in connection with any such transfer or exchange pursuant
\nto this Section. The Issuers shall not be required to make and the Registrar
\nneed not register transfers or exchanges of Securities selected for redemption
\n(except, in the case of Securities to be redeemed in part, the portion thereof
\nnot to be redeemed) or any Securities for a period of 15 days before a selection
\nof Securities to be redeemed.<\/p>\n<\/p>\n Prior to the due presentation for registration of transfer of any Security,
\nthe Issuers, the Trustee, the Paying Agent, and the Registrar may deem and treat
\nthe Person in whose name a Security is registered<\/p>\n<\/p>\n -11-<\/p>\n \n
\nas the absolute owner of such Security for the purpose of receiving the
\npayment of principal and interest, if any, on such Security and for all other
\npurposes whatsoever, whether or not such Security is overdue, and none of the
\nIssuers, the Trustee, the Paying Agent or the Registrar shall be affected by
\nnotice to the contrary.<\/p>\n<\/p>\n Any Holder of a Global Security shall, by acceptance of such Global Security,
\nagree that transfers of beneficial interest in such Global Security may be
\neffected only through a book-entry system maintained by (a) the Holder of such
\nGlobal Security (or its agent) or (b) any Holder of a beneficial interest in
\nsuch Global Security, and that ownership of a beneficial interest in such Global
\nSecurity shall be required to be reflected in a book entry.<\/p>\n<\/p>\n All Securities issued upon any transfer or exchange pursuant to the terms of
\nthis Indenture will evidence the same debt and will be entitled to the same
\nbenefits under this Indenture as the Securities surrendered upon such transfer
\nor exchange.<\/p>\n<\/p>\n Section 2.09. Replacement Securities<\/u>. If a mutilated Security is
\nsurrendered to the Registrar or if the Holder of a Security claims that a
\nSecurity has been lost, destroyed or wrongfully taken, the Issuers shall issue
\nand the Trustee shall authenticate a replacement Security if the requirements of
\nSection 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
\nsatisfies the Issuers or the Trustee within a reasonable time after such Holder
\nhas notice of such loss, destruction or wrongful taking, and the Registrar does
\nnot register a transfer prior to receiving such notification, (b) requests the
\nIssuers or the Trustee to issue a new replacement Security, prior to the
\nSecurity being acquired by a protected purchaser as defined in Section 8-303 of
\nthe Uniform Commercial Code (a “protected purchaser<\/strong>“) and (c)
\nsatisfies any other reasonable requirements of the Trustee. If required by the
\nTrustee or the Issuers, such Holder shall furnish an indemnity bond sufficient
\nin the judgment of the Trustee to protect the Issuers, the Trustee, the Paying
\nAgent and the Registrar from any loss that any of them may suffer if a Security
\nis replaced. The Issuers and the Trustee may charge the Holder for the expenses
\nthey incur in replacing a Security. In the event any such mutilated, lost,
\ndestroyed or wrongfully taken Security has become or is about to become due and
\npayable, the Issuers in their discretion may pay such Security instead of
\nissuing a new Security in replacement thereof.<\/p>\n<\/p>\nEvery replacement Security is an additional obligation of the Issuers.<\/p>\n<\/p>\n The provisions of this Section 2.09 are exclusive and shall preclude (to the
\nextent lawful) all other rights and remedies with respect to the replacement or
\npayment of mutilated, lost, destroyed or wrongfully taken Securities.<\/p>\n<\/p>\n Section 2.10. Outstanding Securities<\/u>. Securities outstanding at any
\ntime consist of all Securities authenticated by the Trustee except for those
\ncanceled by it, those delivered to it for cancellation and those described in
\nthis Section as not outstanding. Subject to Section 10.06, a Security does not
\ncease to be outstanding because an Issuer or an Affiliate of an Issuer holds the
\nSecurity.<\/p>\n<\/p>\n If a Security is replaced pursuant to Section 2.09, the Security so replaced
\nceases to be outstanding unless and until the Trustee and the Issuers receive
\nproof satisfactory to them that the replaced Security is held by a protected
\npurchaser.<\/p>\n<\/p>\n If the Paying Agent (other than the Issuers or Affiliates of the Issuers)
\nsegregates and holds in trust, in accordance with this Indenture, on a
\nredemption date or maturity date, money sufficient to pay all principal and
\ninterest payable on that date with respect to the Securities (or portions
\nthereof) to be redeemed or maturing, as the case may be, then on and after that
\ndate, such Securities (or portions thereof) shall cease to be outstanding and
\ninterest on them shall cease to accrue.<\/p>\n<\/p>\n -12-<\/p>\n \n
\nSection 2.11. Temporary Securities<\/u>. In the event that Definitive
\nSecurities are to be issued under the terms of this Indenture, until such
\nDefinitive Securities are ready for delivery, the Issuers may prepare and the
\nTrustee shall authenticate temporary Securities. Temporary Securities shall be
\nsubstantially in the form of Definitive Securities but may have variations that
\nthe Issuers consider appropriate for temporary Securities. Without unreasonable
\ndelay, the Issuers shall prepare and the Trustee shall authenticate Definitive
\nSecurities and deliver them in exchange for temporary Securities upon surrender
\nof such temporary Securities at the office or agency of the Issuers, without
\ncharge to the Holder.<\/p>\n<\/p>\n Section 2.12. Cancellation<\/u>. The Issuers at any time may deliver
\nSecurities to the Trustee for cancellation. The Registrar and the Paying Agent
\nshall forward to the Trustee any Securities surrendered to them for registration
\nof transfer, exchange or payment. The Trustee and no one else shall cancel all
\nSecurities surrendered for registration of transfer, exchange, payment or
\ncancellation and deliver canceled Securities to an Issuer pursuant to written
\ndirection by an Officer of such Issuer. The Issuers may not issue new Securities
\nto replace Securities they have redeemed, paid or delivered to the Trustee for
\ncancellation. The Trustee shall not authenticate Securities in place of canceled
\nSecurities other than pursuant to the terms of this Indenture.<\/p>\n<\/p>\n Section 2.13. Defaulted Interest<\/u>. If the Issuers default in a payment
\nof interest on the Securities, the Issuers shall pay the defaulted interest
\n(plus interest on such defaulted interest to the extent lawful) in any lawful
\nmanner. The Issuers may pay the defaulted interest to the Persons who are
\nSecurityholders on a subsequent special record date. The Issuers shall fix or
\ncause to be fixed any such special record date and payment date to the
\nreasonable satisfaction of the Trustee and shall promptly mail or cause to be
\nmailed to each Securityholder a notice that states the special record date, the
\npayment date and the amount of defaulted interest to be paid.<\/p>\n<\/p>\n Section 2.14. CUSIP Numbers<\/u>. The Issuers in issuing the Securities may
\nuse “CUSIP” numbers (if then generally in use) and, if so, the Trustee shall use
\n“CUSIP” numbers in notices of redemption as a convenience to Holders;
\nprovided<\/em>, however<\/em>, that any such notice may state that no
\nrepresentation is made as to the correctness of such numbers either as printed
\non the Securities or as contained in any notice of a redemption and that
\nreliance may be placed only on the other identification numbers printed on the
\nSecurities, and any such redemption shall not be affected by any defect in or
\nomission of such numbers.<\/p>\n<\/p>\nSection 2.15. Issuance of Additional Securities<\/u>. After the Closing
\nDate, the Issuers shall be entitled to issue Additional Securities under this
\nIndenture in an unlimited aggregate principal amount, which Securities shall
\nhave identical terms as the Securities issued on the Closing Date, other than
\nwith respect to the date of issuance, the issue price and the date from which
\ninterest thereon will begin to accrue.<\/p>\n<\/p>\n With respect to any Additional Securities, each Issuer shall set forth in a
\nresolution of the Board of Directors and an Officers153 Certificate, a copy of
\neach which shall be delivered to the Trustee, the following information:<\/p>\n<\/p>\n (a) the aggregate principal amount of Securities outstanding immediately
\nprior to the issuance of such Additional Securities;<\/p>\n<\/p>\n (b) the aggregate principal amount of such Additional Securities to be
\nauthenticated and delivered pursuant to this Indenture; and<\/p>\n<\/p>\n (c) the issue price, the issue date and the CUSIP number of such Additional
\nSecurities; provided<\/em>, however<\/em>, that no Additional Securities
\nmay be issued unless such Additional Securities<\/p>\n<\/p>\n-13-<\/p>\n \n
\nwould be fungible for United States Federal income tax purposes with all
\nother Securities issued under this Indenture.<\/p>\n<\/p>\n ARTICLE 3<\/p>\n \n REDEMPTION<\/p>\n \n Section 3.01. Notices to Trustee<\/u>. If the Issuers elect to redeem
\nSecurities pursuant to paragraph 5 of the Securities, they shall notify the
\nTrustee in writing of the redemption date and the principal amount of Securities
\nto be redeemed. The redemption provisions of paragraph 5 of the Securities are
\nfully incorporated herein.<\/p>\n<\/p>\n The Issuers shall give each notice to the Trustee provided for in this
\nSection at least 45 days before the redemption date unless the Trustee consents
\nto a shorter period. Such notice shall be accompanied by an Officers153
\nCertificate and an Opinion of Counsel from the Issuers to the effect that such
\nredemption will comply with the conditions and covenants herein. If fewer than
\nall the Securities are to be redeemed, the record date relating to such
\nredemption shall be selected by the Issuers and given to the Trustee, which
\nrecord date shall be not fewer than 15 days after the date of notice to the
\nTrustee. Any such notice may be canceled at any time prior to notice of such
\nredemption being mailed to any Holder and shall thereby be void and of no
\neffect.<\/p>\n<\/p>\n Section 3.02. Selection of Securities to Be Redeemed<\/u>. If fewer than
\nall the Securities are to be redeemed, the Trustee shall select the Securities,
\nnot more than 60 days prior to the redemption date, to be redeemed pro rata or
\nby lot or by a method that complies with applicable legal and securities
\nexchange requirements, if any, and that the Trustee in its sole discretion shall
\ndeem to be fair and appropriate and in accordance with methods generally used at
\nthe time of selection by fiduciaries in similar circumstances. The Trustee shall
\nmake the selection from outstanding Securities not previously called for
\nredemption. The Trustee may select for redemption portions of the principal of
\nSecurities that have denominations larger than $1,000. Securities and portions
\nthereof that the Trustee selects shall be in amounts of $1,000 or a whole
\nmultiple of $1,000. Provisions of this Indenture that apply to Securities called
\nfor redemption also apply to portions of Securities called for redemption. The
\nTrustee shall promptly notify the Issuers of the Securities or portions thereof
\nto be redeemed.<\/p>\n<\/p>\n Section 3.03. Notice of Redemption<\/u>. At least 30 days but not more than
\n60 days before a date for redemption of Securities, the Issuers shall mail a
\nnotice of redemption by first-class mail to each Holder of Securities to be
\nredeemed at such Holder153s registered address.<\/p>\n<\/p>\n The notice shall identify the Securities to be redeemed and shall state:<\/p>\n<\/p>\n (a) the redemption date;<\/p>\n<\/p>\n (b) the redemption price and the amount of accrued interest to the redemption
\ndate;<\/p>\n<\/p>\n (c) the name and address of the Paying Agent;<\/p>\n<\/p>\n (d) that Securities called for redemption must be surrendered to the Paying
\nAgent to collect the redemption price;<\/p>\n<\/p>\n (e) if fewer than all the outstanding Securities are to be redeemed, the
\ncertificate numbers and principal amounts of the particular Securities to be
\nredeemed;<\/p>\n<\/p>\n -14-<\/p>\n \n
\n(f) that, unless the Issuers default in making such redemption payment or the
\nPaying Agent is prohibited from making such payment pursuant to the terms of
\nthis Indenture, interest on Securities (or portion thereof) called for
\nredemption ceases to accrue on and after the redemption date;<\/p>\n<\/p>\n (g) the CUSIP number, if any, printed on the Securities being redeemed; and\n<\/p>\n<\/p>\n (h) that no representation is made as to the correctness or accuracy of the
\nCUSIP number, if any, listed in such notice or printed on the Securities.<\/p>\n<\/p>\n At the Issuers153 request, the Trustee shall give the notice of redemption in
\nthe Issuers153 name and at the Issuers153 expense. In such event, the Issuers shall
\nprovide the Trustee with the information required by this Section.<\/p>\n<\/p>\n Section 3.04. Effect of Notice of Redemption<\/u>. Once notice of
\nredemption is mailed, Securities called for redemption become due and payable on
\nthe redemption date and at the redemption price stated in the notice. Upon
\nsurrender to the Paying Agent, such Securities shall be paid at the redemption
\nprice stated in the notice, plus accrued interest, if any, to the redemption
\ndate; provided<\/em>, however<\/em>, that if the redemption date is after
\na regular record date and on or prior to the interest payment date, the accrued
\ninterest shall be payable to the Securityholder of the redeemed Securities
\nregistered on the relevant record date. Failure to give notice or any defect in
\nthe notice to any Holder shall not affect the validity of the notice to any
\nother Holder.<\/p>\n<\/p>\nSection 3.05. Deposit of Redemption Price<\/u>. Prior to 11:00 a.m. on the
\nredemption date, the Issuers shall deposit with the Paying Agent (or, if an
\nIssuer or a Subsidiary of any of the Issuers is the Paying Agent, shall
\nsegregate and hold in trust) money sufficient to pay the redemption price of and
\naccrued interest on all Securities to be redeemed on that date other than
\nSecurities or portions of Securities called for redemption that have been
\ndelivered by the Issuers to the Trustee for cancellation.<\/p>\n<\/p>\n Section 3.06. Securities Redeemed in Part<\/u>. Upon surrender of a
\nSecurity that is redeemed in part, the Issuers shall execute and the Trustee
\nshall authenticate for the Holder (at the Issuers153 expense) a new Security equal
\nin principal amount to the unredeemed portion of the Security surrendered.<\/p>\n<\/p>\n ARTICLE 4<\/p>\n \n COVENANTS<\/p>\n \n Section 4.01. Payment of Securities<\/u>. The Issuers shall promptly pay
\nthe principal of and interest on the Securities on the dates and in the manner
\nprovided in the Securities and in this Indenture. Principal and interest shall
\nbe considered paid on the date due if on such date the Trustee or the Paying
\nAgent holds, in accordance with this Indenture, money sufficient to pay all
\nprincipal and interest then due and the Trustee or the Paying Agent, as the case
\nmay be, is not prohibited from paying such money to the Securityholders on that
\ndate pursuant to the terms of this Indenture.<\/p>\n<\/p>\n The Issuers shall pay interest on overdue principal at the rate specified in
\nthe Securities, and shall pay interest on overdue installments of interest at
\nthe same rate to the extent lawful.<\/p>\n<\/p>\n Section 4.02. Annual and Quarterly Reports<\/u>. Notwithstanding that the
\nIssuers may not be subject to the reporting requirements of Section 13 or 15(d)
\nof the Exchange Act, each of the Issuers shall provide the Trustee and
\nSecurityholders within 15 days after it would have been required to file them
\nwith the SEC, annual and quarterly reports containing the Issuers153 most recent
\nfinancial statements and<\/p>\n<\/p>\n -15-<\/p>\n \n
\nschedules and related notes thereto, together with management153s discussion
\nand analysis, all of which meet the requirements of the applicable items in Form
\n10-K, in the case of annual reports, and Form 10-Q, in the case of quarterly
\nreports. Delivery of such reports, information and documents to the Trustee is
\nfor informational purposes only and the Trustee153s receipt of such shall not
\nconstitute constructive notice of any information contained therein or
\ndeterminable from information contained therein, including the Company153s
\ncompliance with any of its covenants hereunder (as to which the Trustee is
\nentitled to rely exclusively on Officers153 Certificates). The Issuers also shall
\ncomply with the other provisions of TIA Section 314(a).<\/p>\n<\/p>\n Section 4.03. Corporate Existence<\/u>. Each Issuer shall do or cause to be
\ndone all things necessary to preserve and keep in full force and effect its
\ncorporate existence, material rights (charter and statutory) and material
\nfranchises (other than as contemplated by Section 5.01); provided<\/em>,
\nhowever<\/em>, that such Issuer shall not be required to preserve any such
\nright or franchise if the Board of Directors shall determine that the
\npreservation of such rights or franchises is no longer desirable in the conduct
\nof the business of the Issuers and the Restricted Subsidiaries considered as a
\nwhole.<\/p>\n<\/p>\nSection 4.04. Restrictions on Liens<\/u>. Except as provided in Section
\n4.06, the Issuers shall not, and shall not permit any Restricted Subsidiary to,
\ncreate or suffer to exist any Lien to secure any Indebtedness of any Issuer or
\nany Restricted Subsidiary on any Principal Property of any Issuer or Restricted
\nSubsidiary, without making, or causing such Restricted Subsidiary to make,
\neffective provision to secure all of the Securities offered hereunder and then
\noutstanding by such Lien, equally and ratably with any and all other such
\nIndebtedness thereby secured, so long as such other Indebtedness is so secured,
\nexcept that the foregoing restrictions shall not apply to:<\/p>\n<\/p>\n (a) Liens on property of a Person existing at the time such Person is merged
\ninto or consolidated with any Issuer or Restricted Subsidiary or at the time of
\nsale, lease or other disposition of the properties of such Person (or a division
\nthereof) as an entirety or substantially as an entirety to any Issuer or
\nRestricted Subsidiary;<\/p>\n<\/p>\n (b) Liens on property of a Person existing at the time such Person becomes a
\nRestricted Subsidiary or existing on property prior to the acquisition thereof
\nby any Issuer or Restricted Subsidiary;<\/p>\n<\/p>\n (c) Liens securing Indebtedness between a Restricted Subsidiary and an Issuer
\nor between Restricted Subsidiaries or between Issuers;<\/p>\n<\/p>\n (d) Liens on any property created, assumed or otherwise brought into
\nexistence in contemplation of the sale or other disposition of the underlying
\nproperty, whether directly or indirectly, by way of share disposition or
\notherwise, provided <\/em>that (1) the applicable Issuer or Restricted
\nSubsidiary must dispose of such property within 180 days after the creation of
\nsuch Liens and (2) any Indebtedness secured by such Liens shall be without
\nrecourse to any Issuer or Restricted Subsidiary;<\/p>\n<\/p>\n(e) Liens in favor of the United States of America or any state thereof or
\nany department, agency or instrumentality or political subdivision of the United
\nStates of America or any state thereof, or in favor of any country, or any
\npolitical subdivision thereof, to secure partial, progress, advance or other
\npayments, or performance of any other similar obligations, including, without
\nlimitation, Liens to secure pollution control bonds or industrial revenue or
\nother similar types of bonds;<\/p>\n<\/p>\n -16-<\/p>\n \n
\n(f) Liens imposed by law, such as carriers153, warehousemen153s and mechanics153
\nLiens and other similar Liens arising in the ordinary course of business which
\nsecure obligations not more than 60 days past due or which are being contested
\nin good faith and by appropriate proceedings;<\/p>\n<\/p>\n (g) Liens incurred in the ordinary course of business to secure performance
\nof obligations with respect to statutory or regulatory requirements, performance
\nor return-of-money bonds, surety bonds or other obligations of a like nature, in
\neach case which are not incurred in connection with the borrowing of money, the
\nobtaining of advances or credit or the payment of the deferred purchase price of
\nproperty and which do not in the aggregate impair in any material respect the
\nuse of property in the operation of the business of the Issuers and their
\nrespective Subsidiaries taken as a whole;<\/p>\n<\/p>\n (h) Liens incurred to secure appeal bonds and judgment and attachment Liens,
\nin each case in connection with litigation or legal proceedings which are being
\ncontested in good faith by appropriate proceedings so long as reserves have been
\nestablished to the extent required by GAAP;<\/p>\n<\/p>\n (i) pledges or deposits under workmen153s compensation laws, unemployment
\ninsurance laws or similar legislation, or good faith deposits in connection with
\nbids, tenders, contracts (other than for the payment of Indebtedness) or leases
\nto which any Issuer or Restricted Subsidiary is a party, or deposits to secure
\npublic or statutory obligations of an Issuer or Restricted Subsidiary or
\ndeposits for the payment of rent, in each case incurred in the ordinary course
\nof business;<\/p>\n<\/p>\n (j) utility easements, building restrictions and such other encumbrances or
\ncharges against real property as are of a nature generally existing with respect
\nto properties of a similar character;<\/p>\n<\/p>\n (k) Liens granted to any bank or other institution on the payments to be made
\nto such institution by an Issuer or Subsidiary thereof, pursuant to any interest
\nrate swap or similar agreement or foreign currency hedge, exchange or similar
\nagreement designed to provide protection against fluctuations in interest rates
\nand currency exchange rates, respectively, provided <\/em>that such
\nagreements are entered into in, or are incidental to, the ordinary course of
\nbusiness;<\/p>\n<\/p>\n(l) Liens arising solely by virtue of any statutory or common law provision
\nrelating to banker153s liens, rights of setoff or similar rights and remedies, in
\neach case as to any deposit account or any other fund maintained with a creditor
\ndepository institution, provided <\/em>that (1) such deposit account is not a
\ndedicated cash collateral account and is not subject to restrictions against
\naccess by the applicable Issuer or Restricted Subsidiary in excess of those set
\nforth by regulations promulgated by the Federal Reserve Board, and (2) such
\ndeposit account is not intended by such Issuer or Restricted Subsidiary to
\nprovide collateral to the depository institution;<\/p>\n<\/p>\n(m) Liens arising from Uniform Commercial Code financing statements regarding
\nleases;<\/p>\n<\/p>\n (n) the giving, simultaneously with or within 180 days after the latest of
\nthe Closing Date, or the acquisition, construction, improvement, development or
\nexpansion of such property, of a purchase money Lien on property acquired,
\nconstructed, improved, developed or expanded after the Closing Date, or the
\nacquisition, construction, improvement, development or expansion after the
\nClosing Date, of property subject to any Lien which is limited to such property;\n<\/p>\n<\/p>\n -17-<\/p>\n \n
\n(o) the giving of a Lien on real property which is the sole security for
\nIndebtedness incurred within two years after the latest of the Closing Date, or
\nthe acquisition, construction, improvement, development or expansion of such
\nproperty, provided <\/em>that the holder of such Indebtedness is entitled to
\nenforce its payment only by resorting to such security;<\/p>\n<\/p>\n(p) Liens arising by the terms of letters of credit entered into in the
\nordinary course of business to secure reimbursement obligations thereunder;<\/p>\n<\/p>\n (q) Liens existing on the Closing Date, other than under clause (t);<\/p>\n<\/p>\n (r) Liens for taxes, assessments and other governmental charges or levies not
\nyet due or as to which the period of grace, if any, related thereto has not
\nexpired or which are being contested in good faith and by appropriate
\nproceedings if adequate reserves are maintained to the extent required by GAAP;\n<\/p>\n<\/p>\n (s) extension, renewal, replacement or refunding of any Lien existing on the
\nClosing Date or referred to in clauses (a) to (k) and (n), (o) and (q), this
\nclause (s) and clauses (t) and (u), provided <\/em>that the principal amount
\nof Indebtedness secured thereby and not otherwise authorized by clauses (a) to
\n(k) and (n), (o) and (q), this clause (s) and clauses (t) and (u) shall not
\nexceed the principal amount of Indebtedness, plus any premium or fee payable in
\nconnection with any such extension, renewal, replacement or refunding, so
\nsecured at the time of such extension, renewal, replacement or refunding;<\/p>\n<\/p>\n(t) Liens securing Indebtedness under the Credit Agreement in a principal
\namount not to exceed the greater of (x) $650.0 million and (y) the amount equal
\nto the sum of (i) 65% of the book value (calculated in accordance with GAAP) of
\nthe inventory of the Issuers and the Issuers153 Subsidiaries and (ii) 80% of the
\nbook value (calculated in accordance with GAAP) of the accounts receivables of
\nthe Issuers and the Issuers153 Subsidiaries (in each case, determined by the book
\nvalue set forth on our consolidated balance sheet for the fiscal quarter
\nimmediately preceding the date on which such Indebtedness is incurred); and<\/p>\n<\/p>\n (u) Liens on accounts receivable and assets related thereto described in the
\ndefinition of Qualified Receivables Transaction, incurred in connection with a
\nQualified Receivables Transaction.<\/p>\n<\/p>\n Section 4.05. Restrictions on Sale and Leaseback Transactions<\/u>. Except
\nas provided in Section 4.06, none of the Issuers shall, and none of the Issuers
\nshall permit any Restricted Subsidiary to, after the Closing Date, enter into
\nany arrangement with any Person providing for the leasing by any such Issuer or
\nRestricted Subsidiary of any Principal Property now owned or hereafter acquired
\nwhich has been or is to be sold or transferred by such Issuer or Restricted
\nSubsidiary to such Person with the intention of taking back a lease of such
\nPrincipal Property (a “Sale and Leaseback Transaction<\/strong>“), unless
\nthe net proceeds of such sale or transfer have been determined by the Board of
\nDirectors of such Issuer or Restricted Subsidiary to be at least equal to the
\nfair market value of such Principal Property or asset at the time of such sale
\nand transfer and either:<\/p>\n<\/p>\n(a) within 180 days after it has been received, such Issuer or Restricted
\nSubsidiary applies or causes to be applied an amount equal to the net proceeds
\nof such sale or transfer to the retirement or prepayment (other than any
\nmandatory retirement or prepayment, except mandatory retirements or prepayments
\nrequired as a result of such Sale and Leaseback Transaction) of Funded Debt of
\nany Issuer or any Restricted Subsidiary ranking senior to or pari passu
\n<\/em>with the Securities<\/p>\n<\/p>\n-18-<\/p>\n \n
\nor to the purchase, construction or development of property or assets to be
\nused in the ordinary course of business; or<\/p>\n<\/p>\n (b) such Issuer or Restricted Subsidiary would, on the effective date of such
\nsale or transfer, be entitled, pursuant to this Indenture, to issue, assume or
\nguarantee Indebtedness secured by a Lien upon such Principal Property, at least
\nequal in amount to the Attributable Debt in respect of such Sale and Leaseback
\nTransaction without equally and ratably securing the Securities.<\/p>\n<\/p>\n The foregoing restrictions shall not apply to any Sale and Leaseback
\nTransaction (1) between any Issuer and a Restricted Subsidiary or between
\nRestricted Subsidiaries or between Issuers, provided <\/em>that the lessor
\nshall be an Issuer or a Wholly Owned Restricted Subsidiary, (2) which has a
\nlease of less than three years in length, (3) entered into within 180 days after
\nthe later of the purchase, construction, improvement or development of such
\nPrincipal Property or assets, or the commencement of operation of such Principal
\nProperty or (4) involving Jones Apparel Group153s distribution warehouse at South
\nHill, Virginia.<\/p>\n<\/p>\nSection 4.06. Exempted Debt<\/u>. Notwithstanding Sections 4.04 and 4.05,
\nany Issuer or Restricted Subsidiary may, in addition to amounts permitted under
\nsuch covenants, create Indebtedness secured by Liens, or enter into Sale and
\nLeaseback Transactions, provided <\/em>that, at the time of such transactions
\nand after giving effect thereto, the aggregate outstanding amount of all such
\nIndebtedness secured by Liens plus Attributable Debt resulting from such Sale
\nand Leaseback Transactions does not exceed 20% of Consolidated Equity.<\/p>\n<\/p>\nSection 4.07. Change of Control<\/u>. Upon the occurrence of a Change of
\nControl Triggering Event, unless the Issuers have exercised their right to
\nredeem the Securities as described under paragraph 5 of the Securities, each
\nHolder will have the right to require the Issuers to purchase all or a portion
\n(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such
\nHolder153s Securities, at a purchase price in cash equal to the Change of Control
\nPayment, subject to the rights of Holders of Securities on the relevant record
\ndate to receive interest due on the relevant interest payment date.<\/p>\n<\/p>\n Within 30 days following any Change of Control Triggering Event or, at the
\nIssuers153 option, prior to any Change of Control but after the public
\nannouncement of the pending Change of Control, the Issuers shall mail, or cause
\nto be mailed, by first class mail, a notice to the Trustee and to each Holder
\ndescribing the transaction or transactions that constitute the Change of Control
\nTriggering Event and specifying:<\/p>\n<\/p>\n (a) that the Change of Control Offer is being made pursuant to this Section
\n4.07 and that all Securities tendered will be accepted for payment;<\/p>\n<\/p>\n (b) the Change of Control Payment and the purchase date, which shall be a
\nBusiness Day no earlier than 30 days and no later than 60 days from the date
\nsuch notice is mailed, other than as may be required by law (the
\n“Change of Control Payment Date<\/strong>“);<\/p>\n<\/p>\n(c) the CUSIP numbers for the Securities;<\/p>\n<\/p>\n (d) that any Securities not tendered will continue to accrue interest;<\/p>\n<\/p>\n (e) that, unless the Issuers default in the payment of the Change of Control
\nPayment, all Securities accepted for payment pursuant to the Change of Control
\nOffer will cease to accrue interest after the Change of Control Payment Date;\n<\/p>\n<\/p>\n -19-<\/p>\n \n
\n(f) that Holders electing to have any Securities purchased pursuant to a
\nChange of Control Offer will be required to surrender such Securities to the
\nPaying Agent at the address specified in the notice prior to the close of
\nbusiness on the third Business Day preceding the Change of Control Payment Date;\n<\/p>\n<\/p>\n (g) that Holders will be entitled to withdraw their election referred to in
\nclause (f) if the Paying Agent receives, not later than the close of business on
\nthe second Business Day preceding the Change of Control Payment Date, a
\nfacsimile transmission or letter setting forth the name of the Holder, the
\nprincipal amount of Securities delivered for purchase, and a statement that such
\nHolder is withdrawing his election to have the Securities purchased;<\/p>\n<\/p>\n (h) that Holders whose Securities are being purchased only in part will be
\nissued new Securities equal in principal amount to the unpurchased portion of
\nthe Securities surrendered, which unpurchased portion will be equal to $2,000 in
\nprincipal amount or an integral multiple of $1,000 in excess thereof; and<\/p>\n<\/p>\n (i) that, if mailed prior to the date of consummation of the Change of
\nControl, the Change of Control Offer is conditioned on the Change of Control
\nbeing consummated on or prior to the Change of Control Payment Date.<\/p>\n<\/p>\n The Issuers shall cause the Change of Control Offer to remain open for such
\nperiod as is required by applicable law. The Issuers shall comply, in all
\nmaterial respects, with the requirements of Rule 14e-1 under the Exchange Act
\nand any other securities laws and regulations thereunder to the extent those
\nlaws and regulations are applicable in connection with the repurchase of the
\nSecurities as a result of a Change of Control Triggering Event. To the extent
\nthat the provisions of any such securities laws or regulations conflict with the
\nprovisions of this Section 4.07 or paragraph 7 of the Securities, the Issuers
\nwill comply with those securities laws and regulations and will not be deemed to
\nhave breached their obligations under this Section 4.07 or paragraph 7 of the
\nSecurities by virtue of any such conflict.<\/p>\n<\/p>\n On the Change of Control Payment Date, the Issuers will, to the extent
\nlawful:<\/p>\n<\/p>\n (a) accept or cause a third party to accept for payment all Securities or
\nportions thereof properly tendered pursuant to the Change of Control Offer;<\/p>\n<\/p>\n (b) deposit or cause a third party to deposit with the Paying Agent an amount
\nequal to the Change of Control Payment in respect of all Securities or portions
\nof Securities properly tendered; and<\/p>\n<\/p>\n (c) deliver or cause to be delivered to the Trustee the Securities so
\naccepted together with an Officers153 Certificate stating the aggregate principal
\namount of Securities or portions of Securities being purchased by the Issuers.\n<\/p>\n<\/p>\n The Paying Agent will promptly mail to each Holder of Securities properly
\ntendered the Change of Control Payment for such Securities, and the Trustee will
\npromptly authenticate and mail (or cause to be transferred by book entry) to
\neach Holder a new Security equal in principal amount to any unpurchased portion
\nof the Securities surrendered, if any; provided <\/em>that each new Security
\nwill be in a principal amount of $2,000 or an integral multiple of $1,000 in
\nexcess thereof. The Issuers will publicly announce the results of the Change of
\nControl Offer on or as soon as practicable after the Change of Control Payment
\nDate.<\/p>\n<\/p>\n-20-<\/p>\n \n
\nThe Issuers shall not be required to make a Change of Control Offer upon a
\nChange of Control Triggering Event if a third party involved in the applicable
\nChange of Control makes the Change of Control Offer in the manner, at the times
\nand otherwise in compliance with the requirements set forth in this Section 4.07
\napplicable to a Change of Control Offer made by the Issuers and purchases all
\nSecurities properly tendered and not withdrawn under such Change of Control
\nOffer. Notwithstanding anything to the contrary contained herein, a Change of
\nControl Offer may be made in advance of a Change of Control, conditioned upon
\nthe occurrence of a Change of Control Triggering Event, if a definitive
\nagreement is in place for the Change of Control at the time the Change of
\nControl Offer is made.<\/p>\n<\/p>\n Section 4.08. Waiver of Certain Covenants<\/u>. Each of the Issuers may in
\nany particular instance, be excused from failing to comply with any term,
\nprovision or condition set forth in Section 4.02 or Sections 4.04 to 4.06, with
\nrespect to the Securities if before the time for such compliance the Holders of
\nat least a majority in principal amount of the outstanding Securities shall, by
\nact of such Holders, either waive such compliance in such instance or generally
\nwaive compliance with such term, provision or condition but no such waiver shall
\nextend to or affect such term, provision or condition except to the extent so
\nexpressly waived, and, until such waiver shall become effective, the obligations
\nof the Issuers, and the duties of the Trustee in respect of any such term,
\nprovision or condition shall remain in full force and effect.<\/p>\n<\/p>\n The Issuers may, but shall not be obligated to, fix a record date for the
\npurpose of determining the Persons entitled to waive compliance with any
\ncovenant or condition hereunder. If a record date is fixed, the Holders on such
\nrecord date, or their duly designated proxies, and only such Persons, shall be
\nentitled to waive any such compliance, whether or not such Holders remain
\nHolders after such record date; provided <\/em>that unless the Holders of at
\nleast a majority in principal amount of the outstanding Securities affected
\nshall have waived such compliance prior to the date which is 90 days after such
\nrecord date, any such waiver previously given shall automatically and without
\nfurther action by any Holder be canceled and of no further effect.<\/p>\n<\/p>\nSection 4.09. Compliance Certificate<\/u>. The Issuers shall deliver to the
\nTrustee within 120 days after the end of each fiscal year of the Issuers an
\nOfficers153 Certificate stating that in the course of the performance by the
\nsigners of their duties as Officers of the Issuers they would normally have
\nknowledge of any Default and whether or not the signers know of any Default that
\noccurred during such period. If they do, the certificate shall describe the
\nDefault, its status and what action the Issuers are taking or propose to take
\nwith respect thereto. The Issuers also shall comply with TIA Section 314(a)(4).\n<\/p>\n<\/p>\n Section 4.10. Further Instruments and Acts<\/u>. Each of the Issuers shall
\nexecute and deliver to the Trustee such further instruments and do such further
\nacts as may be reasonably necessary or proper to carry out more effectively the
\npurpose of this Indenture.<\/p>\n<\/p>\n ARTICLE 5<\/p>\n \n SUCCESSOR COMPANIES<\/p>\n \n Section 5.01. Merger and Consolidation<\/u>. None of the Issuers shall
\nconsolidate with or merge with or into, or convey, transfer or lease all or
\nsubstantially all of its properties and assets to, any Person (other than a
\nmerger of a Restricted Subsidiary into an Issuer or another Restricted
\nSubsidiary or a merger of one Issuer into another, a conveyance, transfer or
\nlease by a Restricted Subsidiary to an Issuer or another Restricted Subsidiary
\nor a conveyance, transfer or lease by one Issuer to another), unless:<\/p>\n<\/p>\n (a) the resulting, surviving or transferee Person (the “Successor
\nCompany<\/strong>“) shall be a corporation, limited liability company,
\npartnership, trust or other entity organized and existing<\/p>\n<\/p>\n-21-<\/p>\n \n
\nunder the laws of the United States of America, any State thereof or the
\nDistrict of Columbia, and the Successor Company (if not such Issuer) shall
\nexpressly assume, by a supplemental indenture, executed and delivered to the
\nTrustee, in form satisfactory to the Trustee, all the obligations of such Issuer
\nunder the Securities and this Indenture;<\/p>\n<\/p>\n (b) immediately after giving effect to such transaction (and treating any
\nIndebtedness which becomes an obligation of the Successor Company, any other
\nIssuer or any Restricted Subsidiary as a result of such transaction, as having
\nbeen incurred by the Successor Company or such Issuer or Restricted Subsidiary
\nat the time of such transaction), no Event of Default shall have occurred and be
\ncontinuing;<\/p>\n<\/p>\n (c) such Issuer shall have delivered to the Trustee an Officers153 Certificate
\nand an Opinion of Counsel, each stating that such consolidation, merger,
\nconveyance, lease or transfer and such supplemental indenture (if any) comply
\nwith this Indenture; and<\/p>\n<\/p>\n (d) if, as a result of any such consolidation, merger, conveyance, lease or
\ntransfer, the Principal Property of such Issuer would become subject to a Lien
\nwhich shall not be permitted by this Indenture, such Issuer or the Successor
\nCompany, as the case may be, shall take such steps as shall be necessary to
\nsecure the Securities equally and ratably with (or prior to) all Indebtedness
\nsecured thereby.<\/p>\n<\/p>\n The Successor Company shall succeed to, and be substituted for, and may
\nexercise every right and power of, the applicable Issuer under this Indenture,
\nbut the predecessor Issuer in the case of a lease of all or substantially all of
\nits assets shall not be released from the obligation to pay the principal of and
\ninterest on the Securities.<\/p>\n<\/p>\n ARTICLE 6<\/p>\n \n DEFAULTS AND REMEDIES<\/p>\n \n Section 6.01. Events of Default<\/u>. An “ | | | | | | |